Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 17283
March 7, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
SIXTO HERNANDEZ, defendant-appellant.
J. E. Blanco for appellant.
Actg. Attorney-General Tuason for appellee.
STREET, J.:
This appeal has been brought to reverse a judgement of the court of First Instance of the
Province of Laguna, finding the accused, Sixto Hernandez, guilty of the offense of homicide,
committed on the person of Eugenio Quiatchon, and sentencing him to undergo imprisonment
for fourteen years, eight months and one day, reclusion temporal, with the accessories provided
by law, to indemnify the heirs of the person slain in the amount of P1,000 and to pay the costs.
It appears that for many years prior to April 9, 1920, the date upon which this homicide was
committed, the accused, Sixto Hernandez, had been asserting ownership over a coconut grove
located in the barrio of San Diego, municipality of San Pablo, Province of Laguna, during which
period he had been fighting a losing battle in the courts with respect thereto. At one time he had
been prosecuted for stealing coconuts from the grove, but was acquitted because the title was in
dispute. In an earlier civil action he had been declared in default and had lost, so he says, by the
negligence of his lawyer. He claims, however, to have recovered his position in that matter by
the assistance of another attorney, and through a writ of certiorari from the Supreme Court. In a
still later civil proceeding against him and another with respect to the same property, he claims to
have fallen a victim to the chicanery of a third lawyer, who on his complaint was suspended in
the exercise of his profession for malpractice in connection with that matter. Lastly, he had been
impleaded in a civil action by Florencia Amuran, and at her instance, an injunction had been
issued by the Court of First Instance, restraining him from molesting and possession over said
property. As a result of these events the accused found himself in reduced circumstances, soured
of temper, and rebellious against the mandate of the court.
In the first days of April 1920, one Avelino de Guzman, who had charge of the coconut grove in
behalf of Florencio Amuran, made arrangements with a coconut buyer, named Marto
Encarnacion, to gather the coconuts then ready to be taken from the grove. The disaffected state
of mind of Sixto Hernandez was of course known, and in view of rumors that he would resist
attempts on the part of Florencia Amuran, or those claiming under her, to collect the coconuts
from this grove, Avelino de Guzman, as precautionary measure, requested the authorities of San
Pablo to allow a policeman to go along with workers. This request was acceeded to, and
accordingly on the morning of April 9, 1920, a policeman, Eugenio Quiatchon by name, was
detailed for this duty; and at about 9 or 10 a.m., Marto Encarnacion accompanied by the
policeman, Eugenio Quiatchon, and four workmen, arrived at the grove. Avelino de Guzman

himself had come out in his automobile to be present at the inception of the work, but he was
detained on the way and directed Marto Encarnacion to go ahead to the grove and begin work.
When the party, accompanied by Quiatchon, arrived at the grove, no person was at first seen on
the ground; but as the six defiled singly into the grove, with Marto Encarnacion in the lead, Sixto
Hernandez, with bolo in hand, suddenly sprang form behind a coconut tree which stood a few
paces to the left of the line of march and near the bank of a stream which touches upon or runs
through the grove. Upon seeing Sixto Hernandez approaching paused and receded menacing
attitude, Marto Encarnacion paused and receded a step or two, and Quiatchon, continuing to
advance, was thus brought into a position where he confronted Sixto Hernandez, who
immediately assaulted Quiatchon with his bolo. The later, being wholly unarmed, was unable to
make effective resistance, and was immediately felled to the ground by an oblique stroke which
cut not the left side of the skull.
As Quiatchon collapsed the accused turned towards Marto Encarnacion, but the latter receded;
and as the accused is somewhat lame, he saw that he would be unable to come up with
Encarnacion. He therefore returned to the spot where Quiatchon was now struggling to get up,
and with a second stroke of the bolo cut a deep gash into Quiatchon's face.
Meanwhile the other members of the party had retreated; and when the accused departed,
Quiatchon remained along on the spot. Both of the wounds received by him were of a mortal
nature, especially the second, which, severing arteries of considerable size, caused a profuse flow
of blood. Nevertheless, the injured man got up again and with rapidly weakening power
contrived to walk to an adjacent lot of ground about a hundred meter away, where he succumbed,
and where his body was found when Avelino de Guzman shortly thereafter arrived on the spot
with assistance.
The deceased was a policeman of the type that disdains to go heavily armed in the discharge of
ordinary police duty; and upon this occasion he did not take the precaution to arm himself with
the revolver because he did not believe that it was known that the coconuts had already been
taken from this grove on one occasion by Avelino de Guzman without serious opposition from
Hernandez.
The deceased wore upon this occasion the cap and uniform appropriate for a policeman, and he
was recognized to be such by the accused at the time he was slain.
In the deed above described the accused incurred criminal responsibility for the complex offense
of homicide, under article 404 of the Penal Code, accompanied by assault upon an agent of
authority, under article 2490 of the same code. For this offense the penalty for the more serious
of these two crimes, which is that of homicide, must be imposed in its maximum degree, as
directed in the second paragraph of article 89 of the Penal Code.
It will be noted that the complaint in this case1 charges all the elements constitutive of both the
homicide which is included in the charge of murder, and the assault, since, in addition to
the facts relative to the homicide, said complaint expressly charges that, at the time the homicide
was committed, Eugenio Quiatchon wore the uniform and carried the insignia of a policeman,

and was acting in compliance with a duty to protect from aggression the individuals whom he
was accompanying.
It is therefore, proper in applying the law to the facts of this case, to take into account not only
the homicide but the assault, as he has been repeatedly done in similar cases by the Supreme
Court of these Islands, as well as the Supreme Court of Spain.
In the United States vs. Abijan (1 Phil., 83), it appeared that the accused had attacked and slain
the vice-president of the municipality upon an occasion when the vice-president had ordered the
arrest of the accused for infraction of an order relative to the placing of lights. It was held that the
accused was guilty of the compound crime of assault upon an agent of the Government, under
article 249 of the same Code; and the penalty appropriate to the crime of homicide was applied
in its maximum degree, in accordance with article 89.
The case of the United States vs. Montiel (9 Phil., 162), exhibits an application of the same
doctrine. It there appeared that the accused had assaulted a justice of the peace at a time when
said officer was discharging the functions of his office, and had thereby inflicted upon said
officer serious physical injuries (lesiones graves). The assailant was prosecuted upon a complaint
charging frustrated murder and attempt against the authorities, upon which complaint he was
convicted of the crime of assault. It was held that he could not thereafter be prosecuted upon
another complaint for the offense of lesiones graves, inasmuch as and first complaint had
sufficiently charged both assault and lesiones graves, and the accused should have been
sentenced for the complex offense in the first prosecution. He had already been in jeopardy for
the second offense.
Other decisions of this court involving the application of article 89 of the Penal Code to the
situation where a single act constitutes two distinct crimes, or one of the offenses is a necessary
means for committing the other, are these: For murder and assault upon a provincial governor,
United States vs. Baluyot (40 Phil., 385, 400); for discharging a firearm against a certain person
and lesiones menos graves, United States vs. Marasigan (11 Phil., 27); for usurpation of official
functions and seduction, United States vs. Hernandez (29 Phil., 109); for estafa by means of
falsification of a documents, United States vs. Austero (14 Phil., 377); United States vs. Llames
(1 Phil., 417); for rape and lesiones menos graves, United States vs. Andaya (34 Phil., 690).
The jurisprudence of the Supreme Court of Spain abounds in precedents to the same effect, of
which it will suffice to cite two decisions only, namely: First. A husband in a fit of rage and with
intent to kill discharges a pistol at his wife, which is pregnant, thereby producing an abortion
causing her death. He was sentenced to death under article 80 of the Spanish Penal Code
corresponding to 89 of our Penal Code for complex offense of murder and producing an
abortion. Second. A person, lying in wait behind a door, springs upon and slays a clerk of court
engaged in the discharge of his duties. Held, that he incurs responsibility for the two offenses of
murder and assault upon an agent of authority and is liable to capital punishment. (Decision of
November 20, 1894, No. 191; decision of March 29, 1895.)
The homicide committed in this case was not qualified by any circumstance adequate to raise it
to the category of murder; for although the complaint charges that the offense was committed

with evident premeditation, and the proof shows that the accused had made threats of resistance
sufficient to admonish Avelino de Guzman that the assistance of a policeman was desirable,
nevertheless there is no sufficient proof on which to found the conclusion that a cold and
deliberate design to take life had been formed by the accused for any appreciable time prior to
the commission of the deed. The complaint also charges that the offense was committed with
alevosia; but this charge is not sustained, since the accused made practically a frontal attack upon
a party several times outnumbering himself. It is true that he appears to have sprung from behind
a tree, where he had been unobserved by those approaching, and the method of attack adopted by
the accused did not contribute to insure the execution of the crime without risk to himself.
The question has been made whether an attenuating circumstance might not be found in the
impulse of blind and uncontrollable fury (arrebato y obcecacion) under which the accused is
supposed to have acted; and in this connection attention is called to the fact that a sense of
resentment and perhaps of injustice was rankling in his heart from his descomfiture in the
lawsuits about the land. But this cannot be taken into account as a mitigating circumstance, in
view of the fact that whatever passion the accused entertained had been deliberately fomented by
him over a considerable period of time. Moreover, the circumstance that he was under an
injunction from the Court of First Instance to abstain from interference with Florencia Amuran in
the exercise of the right of possession over this property shows that he was actuated more by a
spirit of lawlessness and revenge than by any sudden impulse of natural and uncontrollable fury.
It results that no circumstance, either of an aggravation or mitigating nature, can be taken into
account in estimating the offense; and the period of reclusion temporal to which the accused
must be sentenced , under article 4304, in relation with article 89 of the Penal Code, will be
found by computing the medium grade of the maximum degree of said penalty, as is usual in
such case (U.S. vs. Marasigan, 11 Phil., 27), which gives a result of eighteen years, two months
and twenty-one days.
The decision of the trial judge in convicting the accused of the offense of homicide must
therefore be affirmed; but the concurrence in the same act of the offense of assault upon an agent
of authority, the penalty imposed must be modified by raising the period of imprisonment from
fourteen years, eight months and one day to eighteen years, two months and twenty-one days to
eighteen years two months and twenty-one days of reclusion temporal; and as thus modified the
sentence is affirmed. So ordered.
Araullo, C.J., Johnson, Avancea, Ostrand and Romualdez, JJ., concur.

Separate Opinions
MALCOLM, J., dissenting:
The court, in my opinion, does violence both to law, constitutional and statutory, and to justice,
inherent and real, when it convicts, an accused person of the two crimes of homicide and assault
against an agent of an authority, when the information charges but the one "delito de asesinato"

(crime of murder), when the accused on arraignment pleaded to this information, when his
defense was outlined to met the charge of murder and not the charge of assault against an agent
of an authority, and when neither the learned trail judge who begun his decision by saying, "El
acusado en esta cuasa lo esta del delito de asedinato," (the defendant herein is charged with the
crime of murder) nor the Attorney-General, much less, the counsel was for accused, grasped the
idea that the accused was standing trial for the crime assault upon an agent of an authority as
well as for the crime of murder. It is universal rule that the accused is entitled to be apprised of
the distinct charge made against him, in order that he may come fully prepared for his defense.
(14 R.C.L., 171) The proposition is so elementary that it is only required to set forth the exact
provisions of our constitution and or Code of Criminal Procedure in order to understand it.
Paragraph 2 of Section 3 of the Organic Act, in enumerating the rights of person accused of
crime, provides, "that in all criminal prosecutions, the accused shall enjoy the right . . . to
demand the nature and cause of the accusation against him." Section 11 of the Code of Criminal
Procedure provides that "A complaint or information must charge but one offense. . . ." To my
mind the information, without being bad for duplicity, and the accused in this case has not been
informed of the nature and cause of the accusation against him denominated an attempt against
an agent of an authority.
In my opinion, the judgement finding the defendant and appellant guilty of the crime of homicide
should be affirmed, unless in our discretion, the penalty be raised, conformable to the provisions
of the Penal Code, to the maximum of the discretionary limit there provided, namely, seventeen
years and four months of cadena temporal.
Villamor and Johns, JJ., concur

G.R. No. L-14128, U.S. v. Valdes, 5 SCRA 859

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
DECISION
December 10, 1918
G.R. No. L-14128
THE UNITED STATES, plaintiff-appellee,
vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.
Ariston Estrada for appellant. Attorney-General Paredes for appellee.

TORRES, J.:
This cause was instituted by a complaint filed by the prosecuting attorney before the Court of
First Instance of this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi,
alias Hugo Navarro y Bunadia, with the crime of arson, and, on the 20th of May of the present
year, judgment was rendered whereby Severino or Faustino Valdes u Guilgan was sentenced to
six years and one day of presidio mayor and to pay one-half of the costs. From this judgment this
defendant appealed. With respect to Hugo Labarro or Navarro, the proceedings were dismissed
with the other half of the costs de officio.
Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent
from the house in which he was living his family, at No. 328, San Rafael Street, San Miguel,
Mrs. Auckback, who appears to have been a resident of the neighborhood, called Mrs. Lewin and
told her that much smoke was issuing from the lower floor of the latter's house, for until then
Mrs. Lewin had not noticed it, and as soon as her attention was brought to the fact she ordered
the servant Paulino Banal to look for the fire, as he did and he found, so asked with kerosene oil
and placed between a post of the house and a partition of the entresol, a piece of a jute sack and a
rag which were burning. At that moment the defendant Valdes was in the entresol, engaged in
his work of cleaning, while, the other defendant Hugo Labarro was cleaning the horses kept at
the place.
On the same morning of the occurrence, the police arrested the defendants, having been called
for the purpose by telephone. Severino Valdes, after his arrest, according to the statement,
Exhibit C, drawn up in the police station, admitted before several policemen that it was he who
had set the fire to the sack and the rag, which had been noticed on the date mentioned. and he
also who had started the several other fires which had occurred in said house on previous days;
that he had performed such acts through the inducement of the other prisoner, Hugo Labarro, for
they felt resentment against, or had trouble with, their masters, and that, as he and his coaccused
were friends, he acted as he did under the promise on Labarro's part to give him a peso for each
such fire that he should start.

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police
station, although he denied having placed the rag and piece of jute sack, soaked with kerosene, in
the place where they were found, and stated, that it was the servant Paulino who had done so. He
alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that
he had gathered together, which is contrary to the statement he made in the police station, to wit,
that he had set the fire to the said rag and piece of sack under the house.
For lack of evidence and on his counsel's petition, the case was dismissed with respect to the
other defendant Hugo Labarro.
Owing to the repeated attempts made for about a month past, since Severino Valdes Began to
serve the Lewin family, to burn the house above mentioned. occupied by the latter and in which
this defendant was employed, some policemen were watching the building and one of them,
Antonio Garcia del Cid., one morning prior to the commission of the crime, according to his
testimony, saw the defendant Valdes climbing up the wall of the warehouse behind the dwelling
house, in which warehouse there was some straw that had previously been burned, and that,
when the defendant noticed the presence of the policeman, he desisted from climbing the wall
and entering the warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an
upright of the house and a partition of the entresol of the building, thus endangering the burning
of the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when
some of its inmates were inside of it.. This crime of provided for and punished by article 549, in
connection with articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven
perpetrator of the same by direct participation is the defendant Severino Valdes, for,
notwithstanding his denial and unsubstantiated exculpations, the record discloses conclusive
proof that it was he who committed the said unlawful act, as it was also he who was guilty of
having set the other fires that occurred in said house. In an affidavit the defendant admitted
having made declarations in the police station, and though at the trial he denied that he set fire to
the sacks and the rag which were found soaked in kerosene and burning, and, without proof
whatever, laid the blame unto his codefendant, the fact is that confessed to having set fire to a
pile of dry leaves whereby much smoke arose from the lower part of the house, but which,
however, did not forewarn his mistress, Mrs. Lewin, though she should have noticed it, and he
allowed the sack and the rag to continue burning until Mrs. Auckback noticing a large volume of
smoke in the house, gave the alarm. No proof was submitted to substantiate the accusation he
made against the servant Paulino, who apparently is the same persons as the driver Hugo
Labarro.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts
conceive to the burning of said house, but nevertheless., owing to causes independent of his will,
the criminal act which he intended was not produced. The offense committed cannot be
classified as consummated arson by the burning of said inhabited house, for the reason that no
part of the building had yet commenced to burn, although, as the piece of sack and the rag,
soaked in kerosene oil, had been placed near partition of the entresol, the partition might have
started to burn, had the fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered in a connection with the

commission of the crime, and therefore the penalty of presidio mayor immediately inferior in
degree to that specified in article 549 of the Penal Code, should be imposed in its medium
degree.
For the foregoing reasons the judgment appealed from should be affirmed, with the modification
however, that the penalty imposed upon the defendant shall be given eight years and one day of
presidio mayor, with the accessory penalties prescribed in article 57 of the Code. The defendant
shall also pay the costs of both instances. So ordered.
Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avance

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-43530

August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of
First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two
years and four months of prision correccional and to an additional penalty of ten years and one
day of prision mayor for being an habitual delinquent, with the accessory penalties of the law,
and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an
opening with an iron bar on the wall of a store of cheap goods located on the last named street.
At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The
accused had only succeeded in breaking one board and in unfastening another from the wall,
when the policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo,
the trial judge and the Solicitor-General, as constituting attempted robbery, which we think is
erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that
which has a logical relation to a particular, concrete offense; that, which is the beginning of the
execution of the offense by overt acts of the perpetrator, leading directly to its realization and
consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in
relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal
Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan
Yu's store by means of violence, passing through the opening which he had started to make on
the wall, in order to commit an offense which, due to the timely arrival of policeman
Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for
the purpose of imposing penal sanction, that an act objectively performed constitute a mere

beginning of execution; it is necessary to establish its unavoidable connection, like the logical
and natural relation of the cause and its effect, with the deed which, upon its consummation, will
develop into one of the offenses defined and punished by the Code; it is necessary to prove that
said beginning of execution, if carried to its complete termination following its natural course,
without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that
the simple act of entering by means of force or violence another person's dwelling may be
considered an attempt to commit this offense, it must be shown that the offender clearly intended
to take possession, for the purpose of gain, of some personal property belonging to another. In
the instant case, there is nothing in the record from which such purpose of the accused may
reasonably be inferred. From the fact established and stated in the decision, that the accused on
the day in question was making an opening by means of an iron bar on the wall of Tan Yu's
store, it may only be inferred as a logical conclusion that his evident intention was to enter by
means of force said store against the will of its owner. That his final objective, once he
succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit
any other offense, there is nothing in the record to justify a concrete finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (accion fin) cannot exactly
be ascertained, but the same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very nature, by the facts
to which they are related, by the circumstances of the persons performing the same, and
by the things connected therewith, they must show without any doubt, that they are aimed
at the consummation of a crime. Acts susceptible of double interpretation , that is, in
favor as well as against the culprit, and which show an innocent as well as a punishable
act, must not and can not furnish grounds by themselves for attempted nor frustrated
crimes. The relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must be ascertained
from the facts and therefore it is necessary, in order to avoid regrettable instances of
injustice, that the mind be able to directly infer from them the intention of the perpetrator
to cause a particular injury. This must have been the intention of the legislator in
requiring that in order for an attempt to exist, the offender must commence the
commission of the felony directly by overt acts, that is to say, that the acts performed
must be such that, without the intent to commit an offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its
execution, and therefore they must have an immediate and necessary relation to the offense."
Considering says the Supreme Court of Spain in its decision of March 21, 1892
that in order to declare that such and such overt acts constitute an attempted offense it is
necessary that their objective be known and established, or that said acts be of such
nature that they themselves should obviously disclose the criminal objective necessarily
intended, said objective and finality to serve as ground for the designation of the offense:
....

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration
does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and
Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article
280 of the Revised Penal Code, this offense is committed when a private person shall enter the
dwelling of another against the latter's will. The accused may be convicted and sentenced for an
attempt to commit this offense in accordance with the evidence and the following allegation
contained in the information: "... the accused armed with an iron bar forced the wall of said store
by breaking a board and unfastening another for the purpose of entering said store ... and that the
accused did not succeed in entering the store due to the presence of the policeman on beat Jose
Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly
approached the accused ... ." Under the circumstances of this case the prohibition of the owner or
inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson,
25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25
Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances
of nighttime and former convictions, inasmuch as the record shows that several final
judgments for robbery and theft have been rendered against him and in his favor, the
mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into
consideration as an aggravating circumstance inasmuch as this is the very fact which in this case
constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods
and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to
attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and
medium periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the
same Code, the accused is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and
mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5848
April 30, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the defendantappellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the
person of Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, 1
month, and 11 days of prision mayor, to 14 years, 8 months, and 1 day of reclusion temporal, to
indemnify the offended party Tan Siong Kiap in the sum of P350, without subsidiary
imprisonment in case of insolvency, and to pay the costs. The case was appealed to the Court of
Appeals, but that court certified it to this Court under the provisions of section 17 (4) of Republic
Act No. 296, on the ground that the crime charged was committed on the same occasion that the
defendant-appellant had committed crime of murder, with which the defendant-appellant was
also charged.
The evidence for the prosecution shows that early in the morning of September 3, 1949, the
defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he
started firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan
Siong Kiap, who was in the store and saw the accused enter and afterwards fire a shot at Jose Sy,
asked the defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned around
and fired at him also. The bullet fired from defendant-appellant's pistol entered the right shoulder
of Tan Siong Kiap immediately ran to a room behind the store to hide. From there he still heard
gunshot fired from defendant-appellant's pistol, but afterwards defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He
stayed there from September 3 to September 12, 1949, when he was released upon his request
and against the physician's advice. He was asked to return to the hospital for further treatment,
and he did so five times for a period of more than ten days. Thereafter his wound was completely
healed. He spent the sum of P300 for hospital and doctor's fees.
The defendant-appellant shot two other persons in the morning of September 3, 1949, before
shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September
5 information was received by the Manila Police Department that defendant-appellant was in
custody of the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V.

Lomotan proceeded to Tarlac. There he saw the defendant-appellant and had a conversation with
him. On this occasion defendant-appellant and had a conversation with him. On this occasion
defendant-appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian, and
Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the pistol used by the defendantappellant, marked Exhibit C, and its magazine, Exhibit C-1, both of which the Constabulary had
confiscated from the defendant-appellant. The defendant-appellant was thereupon delivered to
the custody of Lomotan, and the latter brought him to Manila, where his statement was taken
down in writing. This declaration was submitted at the time of the trial as Exhibit D, and it
contains all the details of the assaults that defendant-appellant 3 against the persons of Tan Siong
Kiap, Ong Pian, and Jose Sy. This written statement was taken down on a typewriter and
afterwards signed by the defendant-appellant in both his Chinese and Filipino names, the latter
being Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months prior to September 3,
1949, he was employed as an attendant in a restaurant belonging to Ong Pian. Defendantappellant's wife by the name of Vicenta was also employed by Ong Pian's partner, Eng Cheng
Suy. Prior to September 3 the relatives of his wife had been asking the latter for help, because
her father was sick. Defendant-appellant asked money from Ong Pian, but the latter could only
give him P1. His wife was able to borrow P20 from her employer, and this was sent to his wife's
parents in Cebu. Afterwards defendant-appellant was dismissed from his work at the restaurant
of Ong Pian, and he became a peddler. Ong Pian presented a list of the sums that defendantappellant had borrowed from him, and these sums were deducted from the salary of his wife.
Defendant-appellant did not recognize these sums as his indebtedness, and so he resented Ong
Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before September 3, 1949,
defendant-appellant had been able to realize the sum of P70 from the sales of medicine that he
peddled. He laid his money in a place in his room, but the following morning he found that it had
disappeared from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the
discovery of the loss of money, told defendant-appellant that he must have given the money to
his wife, and that nobody had stolen it. After this incident of the loss, the defendant-appellant
used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the money had not been
actually stolen, but that he lost it in gambling. Because of these accusations against him, he
nurtured resentment against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the
possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol and
tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there shot Ong
Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy and Tan
Siong Kiap were, and there he fired at them. Then he escaped to Legarda Street, in Sampaloc,
where he borrowed P1 from his relatives. From there he went to Malabon, to the house of his
mother, to whom he told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the defendant-appellant in
Exhibit D on September 6, 1949. At the time of the trial, however, he disowned the confession
and explained that he signed it without having read its contents. He declared that it was not he

who shot the three victims, but it was one by the name of Chua Tone, with whom he had
previously connived to kill the three other victims. He introduced no witnesses, however, to
support his denial. Neither did he deny that he admitted before Captain Lomotan having killed
the three persons, or having been found in Tarlac in possession of the caliber .45 pistol, Exhibit
C, and its magazine, Exhibit C-1. In his cross-examination he admitted many of the incidents
mentioned in the confession, especially the cause of his resentment against his victims Ong Pian,
Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him guilty of the crime
charged.
On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding
that Tan Siong Kiap received the shot accidentally from the same bullet that had been fired at
Jose Sy, and in finding that defendant-appellant has committed a crime distinct and separate
from that of murder for the slaying of Jose Sy. We find no merit in this contention. According to
the uncontradicted testimony of the offended party Tan Siong Kiap, when the latters saw
defendant-appellant firing shots he asked him why he was doing so, and the defendant-appellant,
instead of answering him, turned around and fired at him also. It is not true, therefore, that the
shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We
also find no merit in this contention. The evidence submitted to prove the charge consists of: the
uncontradicted testimony of the victim himself; the admissions made verbally by the defendantappellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant had escaped
and was found in Tarlac; his possession of the .45 caliber pistol coupled with the fact, attested to
by the testimony of the physician who examined and treated the wounds of Tan Siong Kiap, that
the wounds found in his person must have been caused by the caliber .45 bullet; and, lastly, the
confession of the defendant-appellant himself, Exhibit D, which he was not able to impugn. As
against this mass of evidence, defendant-appellant has only made a very unbelievable story that
it was not he but another that had committed the crime charged. His admissions at the time of the
trial regarding the incidents, as well as the cause of his having assaulted his victims, coincide
exactly with the reasons given in his written confession. This shows that he had made the
confession himself, for nobody but himself could have known the facts therein stated. The claim
that the offense has not been proved beyond reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an
indemnity of P350. The offended party testified that he actually spent P300 for hospital and
doctor's fees, and that he was confined in the hospital for nine days. The above facts stand
uncontradicted. This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty only of less serious
physical injuries instead of the crime of frustrated murder as defendant-appellant admitted in his
confession in the open court that he had a grudge against the offended party, and that he
connived with another to kill the latter. The intent to kill is also evident from his conduct in
firing the shot directly at the body of the offended party.

But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal,
because it did not touch any of the vital organs of the body. As a matter of fact, the medical
certification issued by the physician who examined the wound of the offended party at the time
he went to the hospital, states that the wound was to heal within a period of fourteen days, while
the offended party actually stayed in the hospital for nine days and continued receiving treatment
thereafter five time for the period of more than ten days, or a total of not more than thirty days.
The question that needs to be determined, therefore, is: Did the defendant-appellant perform all
the acts of execution necessary to produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs.
Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually
commit all the acts of execution necessary to produce the death of his victim, but that it is
sufficient that he believes that he has committed all said acts. In the case of People vs. Dagman,
supra, the victim was first knocked down by a stone thrown at him, then attacked with a lance,
and then wounded by bolos and clubs wielded by the accused, but the victim upon falling down
feigned death, and the accused desisted from further continuing in the assault in the belief that
their victim was dead. And in the case of People vs. Borinaga, supra, the accused stabbed his
intended victim, but the knife with which he committed the aggression instead of hitting the body
of the victim, lodged in the back of the chair in which he was seated, although the accused
believed that he had already harmed him. In both these cases this Court held that of the crime
committed was that of frustrated murder, because the subjective phase of the acts necessary to
commit the offense had already passed; there was full and complete belief on the part of the
assailant that he had committed all the acts of execution necessary to produce the death of the
intended victim.
In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but
he was able to escape and hide in another room. The fact that he was able to escape, which
appellant must have seen, must have produced in the mind of the defendant-appellant that he was
not able to his his victim at a vital part of the body. In other words, the defendant-appellant knew
that he had not actually all the acts of execution necessary to kill his victim. Under these
circumstances, it can not be said that the subjective phase of the acts of execution had been
completed. And as it does not appear that the defendant-appellant continued in the pursuit, and as
a matter of fact, he ran away afterwards a reasonable doubt exist in our mind that the defendantappellant had actually believed that he has committed all the acts of execution or passed the
subjective phase of the said acts. This doubt must be resolved in favor of the defendantappellant.
We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as
charged in the information. We only find him guilty of attempted murder, because he did not
perform all the acts of execution, actual and subjective, in order that the purpose and intention
that he had to kill his victim might be carried out.
Therefore, the judgment appealed from should be, as it is hereby, modified and the defendantappellant is found guilty of the crime of attempted murder, and the sentence imposed upon him
reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prision correccional

to 10 years of prision mayor. In all other respects the judgment is affirmed. With costs against
the defendant-appellant.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 78781-82 October 15, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO
ASPIRIN, NICOLAS GUADALUPE AND HERMIE PAHIT, accused-appellants.
The Solicitor General for plaintiff-appellee.
Robert J. Landas for acussed-appellants.

GUTIERREZ, JR., J.:

The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit appeal the two (2)
judgments of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, which convicted them of murder of one Reynaldo
Cabrera Gaurano and of frustrated murder of Joey Lugatiman.
In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the penalty of reclusion perpetua and to
severally pay an indemnity of P25,000.00 to the mother of the victim. In the frustrated murder case (Criminal Case No. 1194), each
of them was sentenced to serve the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor as
minimum to ten (10) years of prision mayor as maximum.
The accused were all charged with kidnapping with murder and kidnapping with frustrated murder. However, the trial court found
accused-appellants guilty only of murder and frustrated murder as convicted. The accused Josen Ravelo and Jerry Ravelo are still
at large.
The present petition was originally one that sought the issuance of a writ of habeas corpus. The Court instead resolved to treat it
as an appeal in view of the near capital nature of the crimes for which the appellants were convicted.
The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed at a checkpoint near the airport at
Awasian in Mabua, Tandag,Surigao del Sur. The prosecution alleged that they stopped the two (2) victims for questioning on the
suspicion that the latter were insurgents or members of the New People's Army. (NPA).
In Criminal Case No. 1187, the accused-appellants were charged with having committed kidnapping with murder in the following
manner:

That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San Agustin Sur,
municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, PEDRO RAVELO, JERRY RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO
ASPIRIN, NICOLAS GUADALUPE, HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and
mutually helping each other did, then and there, wilfully, unlawfully and feloniously take, pick-up, kidnap by
meansof force, one REYNALDO CABRERA GAURANO, a minor, while the latter was walking along Tandag
Bridge at barangay Dawis, San Agustin Sur, then the above-named accused carried away the said, Reynaldo
Cabrera Gaurano to barangay Awasian and detained, kept and locked him in a room at the house of Pedro
Ravelo, one of the accused herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock dawn, May 22,
1984, or a period of 10 hours under restraint and against the will of said minor, Reynaldo Cabrera Gaurano and
that the above named accused during the said period of kidnapping, maltreated and refused to release said
Reynaldo Cabrera Gaurano, and while on the same period of time at about 4:00 o'clock dawn, May 22, 1984, at
barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction of this Honorable Court, the abovenamed accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas Guadalupe,
Hermie Pahit, and Josen Ravelo, conspiring, confederating, and mutually helping each other, armed with a
pistol, armalites, and carbines, with intent to kill, with treachery and evident premeditation did, then and there
wilfully, unlawfully and feloniously, assault, attack, cut, slash, and burn, the said Reynaldo Cabrera Guarano,
hitting and inflicting upon the latter, the following wounds or injuries:
1. Blisters formation noted all over the body reddish in color, which easily peel off on pressure; containing
clear fluids; with hemorrhagic reaction beneath blisters;
2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear missing with
circular incised wound around;
3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries and veins; up to the
2nd cervical bone in depth;
4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper and lower
extremeties of different sizes and forms. (Rollo, pp. 8-9)
In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed as follows:
That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian, municipality of Tandag,
province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above named
accused PEDRO RAVELO, HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE,
JERRY RAVELO AND JOSEN RAVELO, conspiring, confederating and mutually aiding one another armed with
the deadly weapons such as pistols, armalite and carbine, did then and there wilfully, unlawfully and
feloniously by means of force and at gun point stop the hauler truck of the South Sea Merchant Company
which was on the way to Tandag, Surigao del Sur from sitio Lumbayagan, Barangay Maticdom, municipality of
Tandag, Surigao del Sur and kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by forcibly
taking said Joey Lugatiman and carry him to the house of accused Pedro Ravelo then to the Airborne
Headquarters at Mabua, Tandag, Surigao del Sur, and while thereat and in pursuance of their conspiracy, with
intent to kill, with evident premeditation and treachery and by taking advantage of their superior strength being
armed with deadly weapon did then and there wilfully, unlawfully and feloniously assault, by hitting and
inflicting upon the latter the following wounds or injuries:
1. Small abrasion and hematoma, both wrist and left ankle;
2. Multiple small abrasions, chest and right neck and right ankle;
3. Multiple small abrasions and small hematoma, back;
4. Abrasion, upper left lips. (Rollo, pp.18-19)
The trial court based its findings on evidence presented by the prosecution at the trial proper which commenced several months
after the informations were filed. The prosecution evidence in Criminal Case No. 1187 are quoted from the judgment, thus:
Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he knew all the accused
Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30
in the afternoon, he was with a certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to
Dagocdoc to attend a dance. The dance not having began being too early yet, they decided to go back to
Dawis. On their way back while crossing the Tandag bridge across the Tandag river, the accused Pedro
Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and Nicolas Guadalupe
stopped them by pointing their guns. He and Diego Gallardo ran away towards a group of old junk tractors and
hid there. He saw Reynaldo Gaurano chased by all the accused. He saw Reynaldo Gaurano ran up to the house
of a certain Fernando Cortes which was just opposite the tractors they were hiding, and which was just across

the road in front of the house of Fernando Cortes. Reynaldo Gaurano was caught up in the house by Jerry
Ravelo, Bonifacio Padilla and Nicolas Guadalupe. He saw Reynaldo Gaurano forced and dragged down to a
waiting pick-up on the road by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. Reynaldo Gaurano was
loaded on the pick-up owned and driven by the accused Pedro Ravelo. All the accused, together with Reynaldo
Gaurano rode on the pick-up towards the Tandag airport at Awasian. After Reynaldo Gaurano disappeared, he
and Diego Gallardo went to the police and reported the matter that Reynaldo Gaurano was brought by the
accused to the airport.
On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano under a mango tree near
the Tandag airport and pointed to the investigator that that was the body of Reynaldo Gaurano with blisters,
without ear and a big wound on the neck. Placed on the mat the cadaver was brought to the Mata Funeral
Parlor at Tandag, Surigao del Sur in that morning of May 23, 1984.
Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he knew very well all the
accused and that he personally saw them in the early dawn of May 22, 1984. He declared that he was at the
Awasian creek near a mango tree catching crabs with the use of a "panggal", a bamboo knitted trap. From a
distance of around twenty meters away, he saw a man hanging from the mango tree over a fire. He saw the
accused Jerry Ravelo placed fire on the hanging person and the accused Romeo Aspirin placed a burning
torch made of dried coconut leaves at the back of the hanging person. The man hanging was not known to
him. The man hanged was also surrounded by Pedro Ravelo, Josen Ravelo, Nicolas Guadalupe, Hermie Pahit
and Bonifacio Padilla. For five minutes watching, he saw the clothing and body burned, he heard the moanings
of the person and heard the laughters of the accused. After witnessing that horrible incident he went home
hurriedly. On cross examination he further stated that he saw for the first time the man already hanging under
a fire (sic).
Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the accused are known
to him for a long time. On May 21, 1984, with ten companions they went to a place in the interior called
Maticdum, Tandag, Surigao del Sur. After five hours stay, he, together with his companions left Maticdum past
midnight for Tandag on a loggingtruck. As soon as they passed by the airport, they were stopped by the
accused and were told to go down from the truck for questioning. He was brought to the house of the accused
Pedro Ravelo near the checkpoint. He was asked if he was Joey Lugatiman and if he knew Reynaldo Gaurano.
There at the headquarters, he was asked if he was an NPA. For almost an hour stay at the headquarters he was
boxed, kicked and manhandled by Pedro Ravelo and by the other accused with the use of their guns until he
became almost unconscious. Then, from the headquarters at Mabua on that early dawn he was brought again
back in the same pick-up to Awasian airport, to the house of Pedro Ravelo and then to the house of Bonifacio
Padilla. Before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano, one meter
away, already weak with bruises on his face, hands tied at the back and with a gag around the mouth, moving
as if in the act of trying to free himself, with a bleeding mouth. When he reached the house of Bonifacio
Padilla, he was chained and tied to the wall near the window of the house. Alone, he peeped through the
window and saw Reynaldo Gaurano hanging up the mango tree with fire below him. He heard the moanings of
Reynaldo Gaurano while hanging from the mango tree thirty meters away from the window of the house of
Bonifacio Padilla. He saw Pedro Ravelo and Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00
o'clock a.m. May 22, 1984, when alone, after being told that he would be killed at 9:00 o'clock in the evening at
the Awasian bridge, he escaped by being able to untie himself at 10:00 o'clock in the morning of May 22, 1984.
He reported what happened to him and to Reynaldo Gaurano, to his parents and then to the police authorities
and later submitted for physical examination on that day, May 22, 1984 and finally was investigated on May 23,
1984 in connection with this case. On cross examination he said that he knew all the accused. He knew that all
the accused are members of the CHDF.
Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that she is the mother of
Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12, 1984 for Tandag. On May 22, 1984
she received a telegram from her sister Remedios Fernandez that her son Reynaldo is dead. She left for
Tandag upon receipt of the telegram and arrived at Tandag on May 24, 1984. Upon her arrival she went to the
Mata Funeral Parlor and then she found the dead body of her son Reynaldo Gaurano inside the coffin and she
saw many parts of the body of her son with burns. She suffered moral damages and other expenses to the
tune of P64,350.00.
Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag testified that Reynaldo
Gaurano is her nephew because his mother Zosima is her younger sister. Her nephew Reynaldo Gaurano was
here in Tandag on vacation. On May 20, 1984, with two companions, Diego Gallardo and Edilberto Salazar, he
failed to go home to the house of her sister. After the second day, May 22, 1984 at around 5:00 o'clock in the
afternoon Edilberto Salazar and Diego Gallardo informed her that Reynaldo Gaurano was kidnapped by Pedro
Ravelo and his men. The message was relayed to her to Atty. Buenaflor and to Col. Jesus Hermosa. On the
following day, May 23, 1984, Col. Hermosa, with other officers inspected the house of Pedro Ravelo and the
nearby surroundings at Awasian. She was made to Identify an exhumed body at the back of the house of
Pedro Ravelo near the Mango tree. She saw the dead body of her nephew Reynaldo Gaurano without an ear,
the neck was almost cut, entire body with blisters, and naked. His body was pictured and later on brought to
the Mata Funeral Parlor at Tandag. She requested Dr. Romeo delos Reyes of the Tandag Provincial Hospital to
conduct an autopsy and after which the dead body of Reynaldo Gaurano was embalmed to await the arrival of
the mother from Cebu City.

Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial Hospital testified that
he conducted an autopsy on the dead body of a certain Reynaldo Gaurano, Exhibit "A", at the Mata Funeral
Parlor. He found blisters formation caused by fire burns throughout; the body was reddish and skin peels off
easily; swollen face, hematoma, contusion, losing of hair, wound around the neck; and these injuries could
have been inflicted 36 to 48 hours before the autopsy. Death certificate, Exhibit "B" was issued. The burns and
the injuries above stated were suffered before Reynaldo Gaurano died.
Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a photographer at Tandag,
testified that he took the pictures of a dead man inside a hole upon orders of Col. Hermosa at Awasian near the
airport. He took pictures as shown in Exhibit "C", "C-1"; he took 8 positions of the dead body. While yet inside
the holeexhibit "D" and as shown in Exhibit "E" and "F", that was the dead body of Reynaldo Gaurano near the
mango tree; Exhibit "G", while the cadaver was inside the hole and Exhibit "H" is the picture while the body
was lying on the mat.
Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that at around 8:00
o'clock in the morning of May 23, 1984, he was the assistant team leader of the group that proceeded to
Tambacan, Awasian, Tandag to look for and inspect the place where a certain Reynaldo Gaurano was
kidnapped. Under a mango tree and about 25 meters near the house of Bonifacio Padilla the group recovered a
P.25 coin, a small comb, two zippers and burned pieces ofcloth and burned coconut leaves, together with new
excavated soil. Further search under the mango tree led to the very place where the body of Reynaldo Gaurano
was buried. At around 10:00 o'clock a.m., May 23, 1984, they exhumed the dead body which was buried under
a depth of around one meter under the mango tree which was around 25 meters from the house of Bonifacio
Padilla and around 150 meters from the house of Pedro Ravelo. The cadaver was first Identified to be that of
Reynaldo Gaurano by Edilberto Salazar. A photographer was called and pictures were taken of the dead body
of Reynaldo Gaurano from the hole and then the body was brought to the surface and placed on the mat. Not
one of the accused was present during the period while the group was searching and exhuming the body of
Reynaldo Gaurano. The body of Reynaldo Gaurano shows signs of burns and several injuries, and was finally
brought to the funeral parlor at Tandag.
As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian, Tandag, Surigao del
Sur. His death was the result of the shock secondary to the wound around the neck, Exhibit "A", and occurred
while he was hanged by the accused with hands tied to a branch of a mango tree. Sufferings of pains, through
his moanings, were augmented and aggravated by the tortures inflicted as vividly seen through the removal of
the right ear, the wound around the neck and placing of fires on his body, and the fire below his feet. Not only
were these acts brutal and cruel but also heartless and savage acts of the accused, devoid of an iota of
sympathy, who, instead, were happy and delighted to see the miseries suffered by their victim. Further, it was
shown that they helped one another or conspired with one another in torturing with the use of their firearms,
and in killing Reynaldo Gaurano. (Rollo, pp. 10-16)
Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows:
The evidence of the prosecution consisted of the testimonies of the witnesses and the Medical Certificate.
Witness Joey Lugatiman, 22 years old, resident of Dawis, Tandag, Surigao del Sur testified that he personally
knew all the accused for quite a long time. On May 21, 1984 with ten companions he went to a place called
Maticdom, Tandag, Surigao del Sur. After staying at Maticdum for five hours he went home on board on a
cargo truck. On the way near the Tandag Airport they were stopped by all the accused. They, including
himself, were ordered by the accused Pedro Ravelo to come down from the truck. Then he was brought to the
nearby house of Pedro Ravelo and there he was asked if he was Joey Lugatiman and if he knows Reynaldo
Gaurano.
His companions were ordered to proceed to Tandag while he was loaded on a service pick up driven by the
accused Pedro Ravelo. He was brought by all the accused to the Headquarters of the Airborne Company at
Mabua, Tandag, Surigao del Sur. In the Headquarters of the Airborne, he was interrogated if he was an NPA.
After hearing his denial of being an NPA he was boxed, kicked and pistol whipped by the accused Pedro
Ravelo and his co-accused. He was manhandled by the accused with the use of the firearms for almost an
hour. Later he was brought back again to Awasian Airport to the house of Pedro Ravell (should be Ravelo)
then to the house of Bonifacio Padilla. But before proceeding to the house of Bonifacio Padilla, he saw his
friend Reynaldo Gaurano one meter away, already weak with bruises on the face, hands, tied at the back and
gagged around the mouth. Reynaldo Gaurano could not talk and he was moving in the act to free himself and
with a bleeding mouth. Upon arriving in the house of Bonifacio Padilla he was chained and hogtied near the
open window by the companions of Pedro Ravelo. Not long after, through the window, he saw Reynaldo
Gaurano hanging up the mango tree and a big fire was set on the ground. He heard the groaning and moaning
of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the right and left side of Reynaldo
Gaurano with the use of dried coconut leaves. He saw all the accused surrounding and watching the hanging
and burning of Reynaldo Gaurano. It was Pedro Ravelo who cut the right ear and who also slashed the neck of
Reynaldo Gaurano. He could not shout because he was afraid. While lying down after he saw the horrible
incident he fell asleep. At around 5:00 o'clock in the morning of May 22, 1984 he awoke and saw Bonifacio
Padilla bringing nylon line with which he was tied to a piece of wood; while Nicolas Gaudalupe gagged him,
and he was blind folded by Hermie Pahit. While the three were about to leave him behind, he heard them
saying that they will kill him at the Awasian bridge at 9:00 o'clock in the evening of May 22, 1984. When he was
left alone in that house he successfully freed himself. He jumped out of the window and escaped via the nipa

palm grove. As consequences of the manhandling of the accused, he suffered several bruises on the breast, at
the back and his mouth. He was physically examined by a doctor in the Provincial Hospital on that day, Exhibit
"A", "A-1" and "A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross examination, he
testified that he escaped at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and that
he knew all the accused to be members of the Civilian Home Defense Force (CHDF). He testified that the house
of Pedro Ravelo and the house of Bonifacio Padilla is around one hundred (100) meters away from each other.
Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial Hospital, and on May
22, 1984 she examined Joey Lugatiman and she issued a medical certificate, Exhibit "A". All her findings were
placed down in Exhibit "A". Upon being cross-examined, she testified that the hematomas, small abrasions
will not cause death. When she examined Joey Lugatiman, she found that he was weak and haggard caused by
the injuries mentioned in Exhibit "A".
Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that while he was
tendering his carabao near the house of Bonifacio Padilla he was surprised to see Joey Lugatiman, wearing
blue t-shirt and a jogging pants jumped out of the window of the house of Bonifacio Padilla, twelve meters
away from him. He saw Joey Lugatiman ran towards the nipa palm then ran towards the airport. He knew Joey
Lugatiman because during the barrio fiesta Joey used to stay in his house at Awasian.
Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on May 22, 1984 he was in
Maticdom together with Joey Lugatiman, Miguel, Gregorio Urbiztondo, Leonildo Naragas, Jesus Espinoza,
Mauricio Estoya, the driver and a helper from 5:00 o'clock in the afternoon and started to go home at around
11:00 o'clock p.m. for Tandag. On the way, near the airport, he, together with his companions on a logging
truck was stopped by the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Hermie Pahit, Bonifacio Padilla,
Romeo Aspirin and Nicolas Guadalupe. They were ordered to come down and were made to identify each
other. He saw Bonifacio Padilla dragged Joey Lugatiman to the house of Pedro Ravelo. It was Pedro Ravelo
who later brought Joey Lugatiman to the pick-up. They were ordered to board on the truck except Joey
Lugatiman who loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio Padilla ordered the
group to proceed to Tandag while Joey Lugatiman was left behind. He reported to the police authorities that
his companion Joey Lugatiman was being held under arrest at Awasian and that he knows all the accused
before this incident. (Rollo, pp. 21-24)
The accused-appellants were not able to or did not present evidence on their behalf, nor were they themselves able to confront the
prosecution witnesses who testified against them except through a counsel de oficio appointed by the trial judge to represent
them namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in place of their defense counsel, Atty. Eliseo Cruz.
The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests for postponements by telegrams
stating his inability to appear for health reasons, led to the refusal by the accused-appellants to be present at the trial. The
accused-appellants alleged that Atty. Cruz left an instruction that they will not submit themselves to trial without him.
The accused-appellants now maintain that they did not "waive" their right to be present during the trial because their refusal was
not done by their own free will but only in accordance with their lawyer's instructions.
The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending telegraphic notes requesting for
postponements. He filed a petition for change of place of detention and venue for trial before this Court, which denied it; a first
petition for habeas corpus on the ground that they should be tried by a military tribunal, which petition was denied; and a motion
for new trial on the ground of lack of due process due to improper waiver of presence at the trial. This motion for new trial was
granted to give the accused-appellants a last chance to be heard and be present. Still, the defense counsel failed to appear and so
did the appellants.
In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to file the required brief. The Court
then appointed a new counsel de oficio for the accused-appellants.
Accused-appellants raised the following alleged errors of the trial court:
I
THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF FRUSTRATED MURDER HAS
NO BASIS IN FACT AND IN LAW.
II
THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS WAIVED THEIR RIGHTS TO BE
PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE TO PROVE THEIR INNOCENCE (Brief for
Appellants, pp. 10-11; Rollo, p. 144)

It is contended that there can be no frustrated murder committed in Criminal Case No. 1194 absent any proof of intent to kill, which
is an essential element of the offense of frustrated murder.
Appellants aver that the trial court erroneously based its conclusion on the fact that when Lugatiman was tied and gagged, the
latter heard one of the accused-appellants utter that they would kill him at Awasianbridge.
The trial court made the following inference which we find to be erroneous:
To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the morning of May 22,
1984 when the accused Bonifacio Padilla together with Hermie Pahit and Nicolas Guadalupe tied his hands to
the wall with a nylon line and gagged him; and when the accused said they will kill him (Joey Lugatiman) at
9:00 o'clock p.m. at Awasian bridge. These final and parting words uttered to Joey Lugatiman eloquently
expressed intent to kill. Killing, however, was not consummated because Joey Lugatiman was able to escape
at around 10:00 o'clock in the morning of May 22, 1984. (Rollo, p. 25)
The facts and evidence on record do not show anything from which intent to kill could be deduced to warrant a conviction for
frustrated murder. A mere statement by the accused stating that Lugatiman would be killed is not sufficient proof of intent to kill to
convict a person of frustrated murder.
In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the actual design to kill (US v. Burns,
41 Phil. 418 [1921]) which must be manifested by external acts. For there to be frustrated murder, the offender must perform all the
acts of execution that would produce the felony as a consequence, but the felony is not thereby produced by reason of causes
independent of the will of the perpetrator. A verbal expression that Lugatiman would be killed sixteen (16) hours after such
statement was made is not sufficient to show an actual design to perpetrate the act. Intent must be shown not only by a statement
by the aggressor of the purpose to kill, but also by the execution of all acts and the use of means necessary to deliver a fatal blow
while the victim is not placed in a position to defend himself. However, after the performance of the last act necessary, or after the
subjective phase of the criminal act was passed, the crime is not produced by reason of forces outside of the will of the aggressor.
(People v. Borinaga, 55 Phil., 433 [1930]).
Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the house of accused-appellant,
Bonifacio Padilla are not acts that would result in death. These were done only to restrain his liberty of movement for the period of
time the accused-appellants were busy hanging and burning the body of Reynaldo Gaurano some thirty (30) meters away from
where Lugatiman was left. Also, tying Lugatiman's hands behind his back and his whole body to the wall, and blindfolding him
were for the purpose of restraining his liberty until the evening of May 22, 1984 came.
Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling at the Headquarters of the
Airborne Company were not fatal as stated by the prosecution's expert witness, Dr. Petronila Montero; hence, there can be no
frustrated murder. This is supported by the records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21; TSN, June 4, 1985, pp.
24-26) Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31, 1985, p. 49, Record, p. 115)
It is worthy to note that the trial court, in concluding the existence of frustrated murder, did not even use as its basis, the
manhandling of Lugatiman. The trial court in fact concedes that the real purpose of the manhandling or torture was to have
Lugatiman admit and confess his being a member of the New People's Army (NPA) and the activities of the NPA's. It was the
statement made by the accused-appellant NicolasGuadalupe that Lugatiman would later be killed, that was the basis of the court
for inferring the commission of frustrated murder. According to the trial court, murder was not committed because of the timely
escape. Escape from the aggressors cannot establish frustrated murder without first showing that the aggressors intended to kill
and that they really attacked the victim.
Under the circumstances, accused-appellants could not even be convicted of an attempt to commit murder. There was no
commencement of the criminal act by over acts which have a direct connection with the crime of murder intended to be committed.
As stated earlier the manhandling, express statement of purpose, and the restraint of liberty were not such as to put the victim in
danger of an imminent death. The small abrasions and hematomas of the victim resulting from the torture by the accused were not
mortal. After the victim was restrained of his liberty immediately before Gaurano was killed, he was able to watch how Gaurano
was burned hanging upside down from a mango tree near the Awasian bridge. Due to his fatigue and extreme weakness, he was
even able to lie down and sleep after looking at the horrible incident. (TSN, May 31, 1985, pp. 22-23)
During the long period of time Lugatiman was informed that "he would be killed" and was left behind (5:00 in the morning) until he
was able to escape at 10:00 in the morning, it was not certain whether or not appellants would really kill him as they did to
Gaurano. Anything could have happened in between. There was no distinct evidence to prove that the accused appellants were
really decided on killing him at the time specified.
The records show that Lugatiman himself was not sure that the accused-appellants would pursue it.
The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus:
xxx xxx xxx

Q. Why did you say a while ago that "I will be the next one to be hung and to be killed by
Ravelo and his group"?
A. I was just afraid that I will be the next.
Q. Now, when you saw these persons burning the body of Reynaldo, did you hear also
what the people around Reynaldo were talking of?
A. What I heard was their laughing and the moaning.
Q. And you heard their laughing?
A. Yes.
Q. Why did you know that they were laughing?
A. Because I heard it.
Q. Their appearance you can see?
A. Their appearance is clear because there is a big light.
Q. And your name was never mentioned that you will be the next to be hung?
A. I did not hear them saying.
Q. There were also no other people like you who were apprehended or being detained by
Pedro Ravelo and his group?
A. I did not see.
Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his group
on May 21, in the early morning rather, on May 22, 1984 dawn?
A. Yes. (TSN, May 31, 1985, pp. 54-55)
After a review of the allegations of the information in Criminal Case No. 1194 and the evidence received and admitted by the court
a quo, the Court is of the view that accused-appellants are not guilty of frustrated murder but only the crime of slight physical
injuries. There is evidence to show that the several small abrasions on the chest, right neck and right ankle of Lugatiman as well
as the hematoma at his back was due to the hitting by a rough, hard object like a butt of a gun. The prosecution witness, Dr.
Montero testified that the injuries were inflicted by some other persons aside from the victim, and needed medical treatment of
four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp. 21-26)
Accused-appellants aver that there was no deliberate waiver on their part of their right to be present at the scheduled hearing
dates because they "did not appear to know the import of their decision not to appear in the trials." According to them, the judge
should have explained to them the meaning and the consequences of their decision not to appear.
The issue of due process had been fully considered by this Court when we acted on the habeas corpus petition. In our May 8, 1988
resolution, we outlined in detail the reasons for our finding of dilatory tactics on the part of the petitioners and their counsel and
why the lower court correctly proceeded with trial.
After stating the various incidents characterizing the initial proceedings and the trial of the case, we stated:
xxx xxx xxx
The petitioners are members of the Civilian Home Defense Force (CHDF) who have been convicted of murder
and frustrated murder committed under particularly brutal circumstances. A notice of appeal was filed thirtynine (39) days from the promulgation of judgment and was clearly out of time. A motion for new trial was also
characterized by plainly dilatory tactics in its handling.

Were it not for the effectivity of the present Constitution, there is a likelihood that the petitioners would have
been sentenced to capital punishment. The near-capital nature of the crimes for which the petitioners were
convicted and the rather unusual circumstances surrounding the trial of the two cases and the failure to
appeal, however, call for a closer look at the judgments of conviction. This can best be done by calling for all
the records of the case including the transcripts of stenographic notes. If, after the consideration of the cases
as appealed cases, there appears to have been a miscarriage of justice or a need for further evidence, the case
can always be remanded for further proceedings as instructed. Otherwise, the judgment will have to be
affirmed or reversed on the basis of all the present records. (Rollo, p. 73)
For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of the first day of the trial proper, or after
five (5) postponements, the accused-appellants came to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz
allegedly sent a telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and requesting a resetting of
the hearing date. The several instances in which the Court received similar telegrams including one where he claimed a "very sick
heart ailment" led the trial court to doubt and disregard the last request of the defense. The court had earlier categorically stated
that it wouldentertain no further requests for postponement.
The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988 and in appointing two (2) counsels de
oficio for the accused-appellants did not only consider the right of the accused to speedy trial which should not be abused by the
defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]). Despite their new
counsels who appeared to be doing their best, the accused-appellants insisted on absenting themselves stating that they cannot
and would not appear without Atty. Cruz and allegedly for fear that they would be harassed by members of the New People's Army.
At this point, the Court informed them of (1) the importance of the appointment of competent counsels de oficio considering the
gravity of the offense and the difficulty of the questions that may arise during the trial; and (2) the fact that there is no legal
obstacle to proceeding with the reception of prosecution evidence in their absence.
Absence at the trial did not deprive the accused-appellants of cross-examination except the right to personally confront the
prosecution witnesses face to face. Notwithstanding their absence, they were represented by the counsels de oficio who took
turns in cross-examining each of the prosecution witnesses.
Accused-appellants also maintain that they did not actually refuse to present evidence on their behalf. They argued that the
counsels de oficio misapprehended a telegram of Atty. Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21,
1985 trial because he had a prior engagement in another court in Ilocos Sur on those dates. They also contend that their failure to
appear and present evidence was "simply because of their misplaced trust and obedience to the instructions of their counsel, Atty.
Eliseo Cruz, whose negligence and lack of vigilance in the handling of the cases, despite the seriousness of the crimes charged,
had caused injustice to the accused-appellants." They ask this Court to take their case as an exception to the rule that a client
shall suffer the consequences of negligence or incompetence of his counsel.
The actual desire of the accused-appellants to testify and present other evidence is not manifest from a thorough review of the
records of the case. If it were true that they wanted to present evidence, they should have taken advantage of the opportunity to be
present, to be heard and to testify in open court with the assistance of their appointed lawyers. As a matter of fact, they were able
to convince the lower court to grant them a chance to have a new trial. However, they still failed to make use of their last
opportunity. They cannot now claim that they were denied their right to be present and to present evidence. This Court upholds the
lower court's position that the accused-appellants were given more than generous time and opportunity to exercise their
constitutional rights which should not be overemphasized at the expense of public policy.
The circumstances of the case do not preclude the application of the rule that a client is bound by the acts of his counsel who
represents him. Nevertheless, at the time when the lower court appointed the de oficio counsels, the court already had ample
notice of the futility of waiting for Atty. Cruz to come and appear for the defense. From the time the accused-appellants were
represented by Atty. Montenegro and Atty. Cuartero, their decision not to attend the trial nor to present evidence is clearly a
product of their own free will.
WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby, respectively, affirmed and modified as to
the crime proven. The accused-appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS
GUADALUPE and HERMIE PAHIT are hereby sentenced:
(1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY THOUSAND PESOS (P50,000.00) in
Criminal Case No. 1187 solidarily; and
(2) To serve the penalty of arresto menor in Criminal Case No. 1194.
SO ORDERED.
Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ., concur

EN BANC
[G.R. No. 129433. March 30, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y

BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1[1] finally did away with frustrated rape2[2]
and allowed only attempted rape and consummated rape to remain in our statute books.
The instant case lurks at the threshold of another emasculation of the stages of
execution of rape by considering almost every attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were to be adopted. The danger there is
that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape and
punished as such. A mere strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal
knowledge of the victim since by it he attained his objective. All the elements of the
offense were already present and nothing more was left for the offender to do, having
performed all the acts necessary to produce the crime and accomplish it. We ruled then
that perfect penetration was not essential; any penetration of the female organ by the

male organ, however slight, was sufficient. The Court further held that entry of the labia
or lips of the female organ, even without rupture of the hymen or laceration of the
vagina, was sufficient to warrant conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely
commenced the commission of a felony directly by overt acts. 3[3] The inference that may
be derived therefrom is that complete or full penetration of the vagina is not required for
rape to be consummated. Any penetration, in whatever degree, is enough to raise the
crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into
the labia or lips of the female organ, even if there be no rupture of the hymen or
laceration of the vagina, to warrant a conviction for consummated rape. While the entry
of the penis into the lips of the female organ was considered synonymous with mere
touching of the external genitalia, e.g., labia majora, labia minora, etc.,4[4] the crucial
doctrinal bottom line is that touching must be inextricably viewed in light of, in relation
to, or as an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked to the
penetration itself. The importance of the requirement of penetration, however slight,
cannot be gainsaid because where entry into the labia or the lips of the female genitalia
has not been established, the crime committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been
committed either in its attempted or in its consummated stage; otherwise, no substantial
distinction would exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the difference between life and
death for the accused - a reclusive life that is not even perpetua but only temporal on
one hand, and the ultimate extermination of life on the other. And, arguing on another
level, if the case at bar cannot be deemed attempted but consummated rape, what then
would constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would no longer be
possible in light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and
sentenced by the court a quo to the extreme penalty of death,5[5] hence this case before

us on automatic review under Art. 335 of the Revised Penal Code as amended by RA
7659.6[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in
the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel
Pamintuan, went down from the second floor of their house to prepare Milo chocolate
drinks for her two (2) children. At the ground floor she met Primo Campuhan who was
then busy filling small plastic bags with water to be frozen into ice in the freezer located
at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As
Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko,
ayo'ko!"7[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan
inside her childrens room kneeling before Crysthel whose pajamas or "jogging pants"
and panty were already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she
cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to
block his path. Corazon then ran out and shouted for help thus prompting her brother, a
cousin and an uncle who were living within their compound, to chase the accused.8[8]
Seconds later, Primo was apprehended by those who answered Corazon's call for help.
They held the accused at the back of their compound until they were advised by their
neighbors to call the barangay officials instead of detaining him for his misdeed.
Physical examination of the victim yielded negative results. No evident sign of extragenital physical injury was noted by the medico-legal officer on Crysthels body as her
hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his
innocence and assailed the charge as a mere scheme of Crysthel's mother who
allegedly harbored ill will against him for his refusal to run an errand for her. 9[9] He
asserted that in truth Crysthel was in a playing mood and wanted to ride on his back
when she suddenly pulled him down causing both of them to fall down on the floor. It
was in this fallen position that Corazon chanced upon them and became hysterical.

Corazon slapped him and accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman. Corazon called for help
from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo.
Vicente punched him and threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but Vicente followed him there.
Primo pleaded for a chance to explain as he reasoned out that the accusation was not
true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay
hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997
found him guilty of statutory rape, sentenced him to the extreme penalty of death, and
ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary
damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon
Pamintuan. He argues that her narration should not be given any weight or credence
since it was punctured with implausible statements and improbabilities so inconsistent
with human nature and experience. He claims that it was truly inconceivable for him to
commit the rape considering that Crysthels younger sister was also in the room playing
while Corazon was just downstairs preparing Milo drinks for her daughters. Their
presence alone as possible eyewitnesses and the fact that the episode happened within
the family compound where a call for assistance could easily be heard and responded
to, would have been enough to deter him from committing the crime. Besides, the door
of the room was wide open for anybody to see what could be taking place inside. Primo
insists that it was almost inconceivable that Corazon could give such a vivid description
of the alleged sexual contact when from where she stood she could not have possibly
seen the alleged touching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of penetration of
Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon
that she saw Primo with his short pants down to his knees kneeling before Crysthel
whose pajamas and panty were supposedly "already removed" and that Primo was
"forcing his penis into Crysthels vagina." The gravamen of the offense of statutory rape
is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of
the Revised Penal Code. Crysthel was only four (4) years old when sexually molested,
thus raising the penalty, from reclusion perpetua to death, to the single indivisible
penalty of death under RA 7659, Sec. 11, the offended party being below seven (7)
years old. We have said often enough that in concluding that carnal knowledge took
place, full penetration of the vaginal orifice is not an essential ingredient, nor is the
rupture of the hymen necessary; the mere touching of the external genitalia by the penis

capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10[10]
But the act of touching should be understood here as inherently part of the entry of the
penis into the labias of the female organ and not mere touching alone of the mons pubis
or the pudendum.
In People v. De la Pea11[11] we clarified that the decisions finding a case for rape even
if the attackers penis merely touched the external portions of the female genitalia were
made in the context of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the victim's testimony that
the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on the lips of
her vulva,12[12] or that the penis of the accused touched the middle part of her
vagina.13[13] Thus, touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis
on the external layer of the victims vagina, or the mons pubis, as in this case. There
must be sufficient and convincing proof that the penis indeed touched the labias or slid
into the female organ, and not merely stroked the external surface thereof, for an
accused to be convicted of consummated rape.14[14] As the labias, which are required to
be "touched" by the penis, are by their natural situs or location beneath the mons pubis
or the vaginal surface, to touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that touching the labia majora or
the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the
clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the surface. The next layer is the labia

majora or the outer lips of the female organ composed of the outer convex surface and
the inner surface. The skin of the outer convex surface is covered with hair follicles and
is pigmented, while the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is the labia minora.15[15]
Jurisprudence dictates that the labia majora must be entered for rape to be
consummated,16[16] and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape. Absent any showing of
the slightest penetration of the female organ, i.e., touching of either labia of the
pudendum by the penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted
"touching of the female organ,"17[17] but has also progressed into being described as
"the introduction of the male organ into the labia of the pudendum,"18[18] or "the
bombardment of the drawbridge."19[19] But, to our mind, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing
of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to discharge
its onus of proving that Primos penis was able to penetrate Crysthels vagina however
slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim that she saw the
inter-genital contact between Primo and Crysthel. When asked what she saw upon
entering her childrens room Corazon plunged into saying that she saw Primo poking his
penis on the vagina of Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should
be recalled that when Corazon chanced upon Primo and Crysthel, the former was
allegedly in a kneeling position, which Corazon described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the
accused is pinning down the victim, while his right hand is holding his
penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling position
rendered an unbridled observation impossible. Not even a vantage point from the side
of the accused and the victim would have provided Corazon an unobstructed view of
Primos penis supposedly reaching Crysthels external genitalia, i.e., labia majora, labia
minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his
movements from Corazons sight, not to discount the fact that Primos right hand was
allegedly holding his penis thereby blocking it from Corazons view. It is the burden of
the prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough that she
claims that she saw what was done to her daughter. It is required that her claim be
properly demonstrated to inspire belief. The prosecution failed in this respect, thus we
cannot conclude without any taint of serious doubt that inter-genital contact was at all
achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution
but to run roughshod over the constitutional right of the accused to be presumed
innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention
despite her timely appearance, thus giving her the opportunity to fully witness his
beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-preservation to
remain where he is and persist in satisfying his lust even when he knows fully well that
his dastardly acts have already been discovered or witnessed by no less than the
mother of his victim. For, the normal behavior or reaction of Primo upon learning of
Corazons presence would have been to pull his pants up to avoid being caught literally
with his pants down. The interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to
the question of the court Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No."
Thus Q: But did his penis penetrate your organ?

A: No, sir.20[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question
of whether rape in this case was consummated. It has foreclosed the possibility of
Primos penis penetrating her vagina, however slight. Crysthel made a categorical
statement denying penetration,21[21] obviously induced by a question propounded to her
who could not have been aware of the finer distinctions between touching and
penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)year old child, whose vocabulary is yet as underdeveloped as her sex and whose
language is bereft of worldly sophistication, an adult interpretation that because the
penis of the accused touched her organ there was sexual entry. Nor can it be deduced
that in trying to penetrate the victim's organ the penis of the accused touched the middle
portion of her vagina and entered the labia of her pudendum as the prosecution failed to
establish sufficiently that Primo made efforts to penetrate Crysthel. 22[22] Corazon did not
say, nay, not even hint that Primo's penis was erect or that he responded with an
erection.23[23] On the contrary, Corazon even narrated that Primo had to hold his penis
with his right hand, thus showing that he had yet to attain an erection to be able to
penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels vagina is
belied by the child's own assertion that she resisted Primos advances by putting her
legs close together;24[24] consequently, she did not feel any intense pain but just felt "not
happy" about what Primo did to her.25[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not
"Aray ko, aray ko!" In cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on the victim's
testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips

of the vagina, or the labia minora was already gaping with redness, or the hymenal tags
were no longer visible.26[26] None was shown in this case. Although a child's testimony
must be received with due consideration on account of her tender age, the Court
endeavors at the same time to harness only what in her story appears to be true,
acutely aware of the equally guaranteed rights of the accused. Thus, we have to
conclude that even on the basis of the testimony of Crysthel alone the accused cannot
be held liable for consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there
were no external signs of physical injuries on complaining witness body to conclude
from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena
explained, although the absence of complete penetration of the hymen does not negate
the possibility of contact, she clarified that there was no medical basis to hold that there
was sexual contact between the accused and the victim.27[27]
In cases of rape where there is a positive testimony and a medical certificate, both
should in all respects complement each other; otherwise, to rely on the testimonial
evidence alone, in utter disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results. It is necessary to
carefully ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was consummated.
Failing in this, the thin line that separates attempted rape from consummated rape will
significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when
the offender commences the commission of rape directly by overt acts, and does not
perform all the acts of execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous desistance. All the elements of
attempted rape - and only of attempted rape - are present in the instant case, hence,
the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of
death for the offense charged, which is statutory rape of a minor below seven (7) years.
Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and
one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the
absence of any mitigating or aggravating circumstance, the maximum of the penalty to
be imposed upon the accused shall be taken from the medium period of reclusion
temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to
seventeen (17) years and four (4) months, while the minimum shall be taken from the

penalty next lower in degree, which is prision mayor, the range of which is from six (6)
years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY"
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay
damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and
sentenced to an indeterminate prison term of eight (8) years four (4) months and ten
(10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months
and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Panganiban, J., in the result.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avancea for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow
was directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he
had killed, and threw the body into the bushes. When he gave himself up he declared that he had
killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused rushed
upon the girl suddenly and struck her from behind, in part at least, with a sharp bolo, producing a
frightful gash in the lumbar region and slightly to the side eight and one-half inches long and two
inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for the reason that she had
theretofore charged him criminally before the local officials with having raped her and with
being the cause of her pregnancy. He was her mother's querido and was living with her as such at
the time the crime here charged was committed.

That the accused is guilty of some crime is not denied. The only question is the precise crime of
which he should be convicted. It is contended, in the first place, that, if death has resulted, the
crime would not have been murder but homicide, and in the second place, that it is attempted and
not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have been
murder if the girl had been killed. It is qualified by the circumstance of alevosia, the accused
making a sudden attack upon his victim from the rear, or partly from the rear, and dealing her a
terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it
was made treacherously; and that being so the crime would have been qualified as murder if
death had resulted.
As to the second contention, we are of the opinion that the crime was frustrated and not
attempted murder. Article 3 of the Penal Code defines a frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of execution which should
produce the felony as a consequence, but which, nevertheless, do not produce it by reason
of causes independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission of the felony directly
by overt acts, and does not perform all the acts of execution which constitute the felony
by reason of some cause or accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the defendant performed
all of the acts which should have resulted in the consummated crime and voluntarily desisted
from further acts. A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In other words, to be an attempted
crime the purpose of the offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when he has performed all of the acts
which should produce the crime as a consequence, which acts it is his intention to perform. If he
has performed all of the acts which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a
foreign or extraneous cause or agency between the beginning of the commission of the crime and
the moment when all of the acts have been performed which should result in the consummated
crime; while in the former there is such intervention and the offender does not arrive at the point
of performing all of the acts which should produce the crime. He is stopped short of that point by
some cause apart from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the subjective phase of
the offense. He is interrupted and compelled to desist by the intervention of outside causes before
the subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective phase is completely passed.
Subjectively the crime is complete. Nothing interrupted the offender while he was passing
through the subjective phase. The crime, however, is not consummated by reason of the
intervention of causes independent of the will of the offender. He did all that was necessary to
commit the crime. If the crime did not result as a consequence it was due to something beyond
his control.
The subjective phase is that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by the offender which, with
the prior acts, should result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of the offender over which he
has control that period between the point where he begins and the points where he voluntarily
desists. If between these two points the offender is stopped by reason of any cause outside of his
own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is
not so stopped but continues until he performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither aggravating
nor mitigating circumstance. As so modified, the judgment is affirmed with costs. So ordered.
Torres and Araullo, JJ., concur.
Carson and Trent, JJ., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No.
83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information
filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as
follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria
St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this

Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he
conveniently provided himself for the purpose and with threats and intimidation, did, then and
there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse
with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence
and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision,
the dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on
accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in
case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102,
Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua
and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29,
1988 decision and forwarded the case to this Court, considering the provision of Section 9,
paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College
at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden,
somebody held her and poked a knife to her neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door
which led to the first floor was locked from the inside, appellant forced complainant to use the
back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck
and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs
(p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With
the Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one
hand holding the knife, appellant undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and
insert it in her vagina. She followed his order as he continued to poke the knife to her. At said
position, however, appellant could not fully penetrate her. Only a portion of his penis entered her
as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a
small part again of his penis was inserted into her vagina. At this stage, appellant had both his
hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the
partition. When she saw him inside the room, she ran to another room. Appellant again chased
her. She fled to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of the
boarding house, and knocked on the door. When there was no answer, she ran around the
building and knocked on the back door. When the policemen who were inside the building
opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the
first policeman to see her, took off his jacket and wrapped it around her. When they discovered
what happened, Pat. Donceras and two other policemen rushed to the boarding house. They
heard a sound at the second floor and saw somebody running away. Due to darkness, they failed
to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where
she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:

Physical Examination Patient is fairly built, came in with loose clothing with no underclothes; appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent nipples; linear abrasions below (L)
breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the vulva, errythematous
(sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old
noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges
noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the
accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies
which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far
from being badges of fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed. The most candid witnesses may make
mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility
(People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the
testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of
Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact,
complete uniformity in details would be a strong indication of untruthfulness and lack of
spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one
of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim

that the accused asked her to hold and guide his penis in order to have carnal knowledge of her.
According to the accused, this is strange because "this is the only case where an aggressor's
advances is being helped-out by the victim in order that there will be a consumation of the act."
(p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended
there. The victim testified further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial
court on the credibility of witnesses should be accorded the highest respect because it has the
advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth
(People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's
finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as to
the sincerity of the offended party in her testimony before the court. Her answer to every
question profounded (sic), under all circumstances, are plain and straightforward. To the Court
she was a picture of supplication hungry and thirsty for the immediate vindication of the affront
to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had
traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her
sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987,
153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280;
People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case
did not only state that she was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked on the door of the municipal
building up to the time she was brought to the hospital was corroborated by Pat. Donceras.
Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and
right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed
hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender
vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 5253, Rollo). The trial court even inspected the boarding house and was fully satisfied that the
narration of the scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight
of both accused and offended party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials, securedly nailed, and would not
give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio,
et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55,
Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to
a frightened individual being pursued. Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many have been saved by jumping from
some considerable heights without being injured. How much more for a frightened barrio girl,
like the offended party to whom honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312),
We ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and managed
to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not
have done nor would these facts have occurred unless she was sexually assaulted in the manner
she narrated.
The accused questions also the failure of the prosecution to present other witnesses to
corroborate the allegations in the complaint and the non-presentation of the medico-legal officer
who actually examined the victim. Suffice it to say that it is up to the prosecution to determine
who should be presented as witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R.
No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually
examined the victim, the trial court stated that it was by agreement of the parties that another
physician testified inasmuch as the medico-legal officer was no longer available. The accused
did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really
calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The
trial court was of the belief that there is no conclusive evidence of penetration of the genital
organ of the victim and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a
woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as
those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment
are present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the
crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of
execution which would produce the felony and (2) that the felony is not produced due to causes
independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209,
212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily
understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the commission
of the crime by overt acts, is prevented, against his will, by some outside cause from performing
all of the acts which should produce the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign force or agency which intervenes and
compels him to stop prior to the moment when he has performed all of the acts which should
produce the crime as a consequence, which acts it is his intention to perform. If he has performed
all of the acts which should result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element which distinguishes attempted
from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous
cause or agency between the beginning of the commission of the crime and the moment when all

of the acts have been performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the point of performing all of
the acts which should produce the crime. He is stopped short of that point by some cause apart
from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim
he actually attains his purpose and, from that moment also all the essential elements of the
offense have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus, the felony is consummated. In a
long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation
of rape, perfect penetration is not essential. Any penetration of the female organ by the male
organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or
laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there
is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53
Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed.
The offender merely commenced the commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the crime of rape and jurisprudence on
the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence
of penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eria case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments
introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the
victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that
the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact,
he tossed back to the offended party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there
was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could
proceed from the uncorroborated testimony of the offended party and that a medical certificate is
not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the
people relied upon cannot be applicable to the instant case. The testimony of the offended party
is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the

mind of the court. It should be stressed that in cases of rape where there is a positive testimony
and a medical certificate, both should in all respect, compliment each other, for otherwise to rely
on the testimony alone in utter disregard of the manifest variance in the medical certificate,
would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not
exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous
(which means marked by abnormal redness of the skin due to capillary congestion, as in
inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the
genital organ of the victim. He merely testified that there was uncertainty whether or not there
was penetration. Anent this testimony, the victim positively testified that there was penetration,
even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.

xxx xxx xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when you said
comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167
SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v.
Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an indispensable element in the prosecution of this
case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the
accused because after a thorough review of the records, We find the evidence sufficient to prove
his guilt beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987
Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989,

that the cited Constitutional provision did not declare the abolition of the death penalty but
merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not
imposed the death penalty whenever it was called for under the Revised Penal Code but instead
reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14,
1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is
imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People
v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused
Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.
G.R. No. 93028 July 29, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARTIN SIMON y SUNGA, respondent.
The Solicitor General for plaintiff-appellee.
Ricardo M.Sampang for accused-appellant.

REGALADO, J.:
Herein accused-appellant Martin Simon y Sunga was charged on November 10, 1988 with a violation of Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging that on or about October 22,
1988, at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer in
1
consideration of the sum of P40.00, which tea bags, when subjected to laboratory examination, were found positive for marijuana.

Eventually arraigned with the assistance of counsel on March 2, 1989, after his rearrest following his
2
escape from Camp Olivas, San Fernando, Pampanga where he was temporarily detained, he pleaded
3
not guilty. He voluntarily waived his right to a pre-trial conference, after which trial on the merits ensued
and was duly concluded.
I
The evidence on record shows that a confidential informant, later identified as a NARCOM operative,
informed the police unit at Camp Olivas, San Fernando, Pampanga, of the illegal drug activities of a
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante, Commanding
Officer of the 3rd Narcotics Regional Unit in the camp, then formed a buy-bust team composed of Sgt.
Buenaventura
Lopez,
Pfc.
Virgilio
Villaruz
and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked money from Bustamante, the
team, together with their informant, proceeded to Sto. Cristo after they had coordinated with the police
authorities and barangay officers thereof. When they reached the place, the confidential informer pointed
out appellant to Lopez who consequently approached appellant and asked him if he had marijuana.

Appellant answered in the affirmative and Lopez offered to buy two tea bags. Appellant then left and,
upon returning shortly thereafter, handed to Lopez two marijuana tea bags and Lopez gave him the
marked money amounting to P40.00 as payment. Lopez then scratched his head as a
pre-arranged signal to his companions who were stationed around ten to fifteen meters away, and the
team closed in on them. Thereupon, Villaruz, who was the head of the back-up team, arrested appellant.
The latter was then brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on board a
4
jeep and he was placed under custodial investigation, with Sgt. Pejoro as the investigator.
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal that transpired between Lopez
and the appellant. He also averred that he was the one who confiscated the marijuana and took the
5
marked money from appellant.
Sgt. Domingo Pejoro, for his part, declared that although he was part of the buy-bust team, he was
stationed farthest from the rest of the other members, that is, around two hundred meters away from his
companions. He did not actually see the sale that transpired between Lopez and appellant but he saw his
teammates accosting appellant after the latter's arrest. He was likewise the one who conducted the
custodial investigation of appellant wherein the latter was apprised of his rights to remain silent, to
6
information and to counsel. Appellant, however, orally waived his right to counsel.
Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property Seized/Confiscated" which
appellant signed, admitting therein the confiscation of four tea bags of marijuana dried leaves in his
possession. Pejoro likewise informed the court below that, originally, what he placed on the receipt was
that only one marijuana leaf was confiscated in exchange for P20.00. However, Lopez and Villaruz
corrected his entry by telling him to put "two", instead of "one" and "40", instead of "20". He agreed to the
correction since they were the ones who were personally and directly involved in the purchase of the
7
marijuana and the arrest of appellant.
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at 5:30 p.m. of the day after
the latter's apprehension, and the results were practically normal except for his relatively high blood
pressure. The doctor also did not find any trace of physical injury on the person of appellant. The next
day,
he
again
examined
appellant
due
to
the
latter's
complaint
of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered that appellant has a history
of peptic ulcer, which causes him to experience abdominal pain and consequently vomit blood. In the
afternoon, appellant came back with the same complaint but, except for the gastro-intestinal pain, his
8
physical condition remained normal.
As expected, appellant tendered an antipodal version of the attendant facts, claiming that on the day in
question, at around 4:30 p.m., he was watching television with the members of his family in their house
when three persons, whom he had never met before suddenly arrived. Relying on the assurance that they
would just inquire about something from him at their detachment, appellant boarded a jeep with them. He
was told that they were going to Camp Olivas, but he later noticed that they were taking a different route.
While on board, he was told that he was a pusher so he attempted to alight from the jeep but he was
handcuffed instead. When they finally reached the camp, he was ordered to sign some papers and, when
he refused, he was boxed in the stomach eight or nine times by Sgt. Pejoro. He was then compelled to
affix his signature and fingerprints on the documents presented to him. He denied knowledge of the
P20.00 or the dried marijuana leaves, and insisted that the twenty-peso bill came from the pocket of
Pejoro. Moreover, the reason why he vomited blood was because of the blows he suffered at the hands
of Pejoro. He admitted having escaped from the NARCOM office but claimed that he did so since he
could no longer endure the maltreatment to which he was being subjected. After escaping, he proceeded
to the house of his uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30
or 7:30 p.m. There, he consulted a quack doctor and, later, he was accompanied by his sister to the
9
Romana Pangan District Hospital at Floridablanca, Pampanga where he was confined for three days.
Appellant's brother, Norberto Simon, testified to the fact that appellant was hospitalized at Floridablanca,
Pampanga after undergoing abdominal pain and vomiting of blood. He likewise confirmed that appellant

10

had been suffering from peptic ulcer even before the latter's arrest. Also, Dr. Evelyn Gomez-Aguas, a
resident physician of Romana Pangan District Hospital, declared that she treated appellant for three days
due to abdominal pain, but her examination revealed that the cause for this ailment was appellant's peptic
11
ulcer. She did not see any sign of slight or serious external injury, abrasion or contusion on his body.
On December 4, 1989, after weighing the evidence presented, the trial court rendered judgment
convicting appellant for a violation of Section 4, Article II of Republic Act No. 6425, as amended, and
sentencing him to suffer the penalty of life imprisonment, to pay a fine of twenty thousand pesos and to
pay the costs. The four tea bags of marijuana dried leaves were likewise ordered confiscated in favor of
12
the Government.
Appellant now prays the Court to reverse the aforementioned judgment of the lower court, contending in
his assignment of errors that the latter erred in (1) not upholding his defense of "frame-up", (2) not
declaring Exhibit "G" (Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3)
13
convicting him of a violation of the Dangerous Drugs Act.
At the outset, it should be noted that while the People's real theory and evidence is to the effect the
appellant actually sold only two tea bags of marijuana dried leaves, while the other two tea bags were
14
merely confiscated subsequently from his possession, the latter not being in any way connected with
15
the sale, the information alleges that he sold and delivered four tea bags of marijuana dried leaves. In
view thereof, the issue presented for resolution in this appeal is merely the act of selling the two tea bags
allegedly committed by appellant, and does not include the disparate and distinct issue of illegal
16
possession of the other two tea bags which separate offense is not charged herein.
To sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably
17
18
established. To sell means to give, whether for money or any other material consideration. It must,
therefore, be established beyond doubt that appellant actually sold and delivered two tea bags of
marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso
bills.
After an assiduous review and calibration of the evidence adduced by both parties, we are morally certain
that appellant was caught in flagrante delicto engaging in the illegal sale of prohibited drugs. The
prosecution was able to prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two
tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably testified as to how the sale
took place and his testimony was amply corroborated by his teammates. As between the straightforward,
positive and corroborated testimony of Lopez and the bare denials and negative testimony of appellant,
the former undeniably deserves greater weight and is more entitled to credence.
We are aware that the practice of entrapping drug traffickers through the utilization of poseur-buyers is
19
susceptible to mistake, harassment, extortion and abuse.
Nonetheless, such causes for judicial
apprehension and doubt do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team before the
20
buy-bust operation was effected. No ill motive was or could be attributed to them, aside from the fact
21
that they are presumed to have regularly performed their official duty.
Such lack of dubious motive
coupled with the presumption of regularity in the performance of official duty, as well as the findings of the
trial court on the credibility of witnesses, should prevail over the self-serving and uncorroborated claim of
22
appellant of having been framed, erected as it is upon the mere shifting sands of an alibi. To top it all,
appellant
was
caught
red-handed delivering prohibited drugs, and while there was a delimited chance for him to controvert the
charge, he does not appear to have plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service of the then Philippine
Constabulary-Integrated National Police (PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn
23
Salangad, a forensic chemist therein,
confirmed in her Technical Report No. NB-448-88 that the

contents of the four tea bags confiscated from appellant were positive for and had a total weight of 3.8
24
grams of marijuana.
Thus, the corpus delicti of the crime had been fully proved with certainty and
25
conclusiveness.
Appellant would want to make capital of the alleged inconsistencies and improbabilities in the testimonies
of the prosecution witnesses. Foremost, according to him, is the matter of who really confiscated the
marijuana tea bags from him since, in open court, Pejoro asserted that he had nothing to do with the
confiscation of the marijuana, but in the aforementioned "Receipt of Property Seized/Confiscated," he
26
signed it as the one who seized the same.
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the marijuana will not really matter
since such is not an element of the offense with which appellant is charged. What is unmistakably clear is
that the marijuana was confiscated from the possession of appellant. Even, assuming arguendo that the
prosecution committed an error on who actually seized the marijuana from appellant, such an error or
discrepancy refers only to a minor matter and, as such, neither impairs the essential integrity of the
27
prosecution evidence as a whole nor reflects on the witnesses' honesty. Besides, there was clearly a
mere imprecision of language since Pejoro obviously meant that he did not take part in the physical taking
of the drug from the person of appellant, but he participated in the legal seizure or confiscation thereof as
the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly confiscated from him were not
28
powdered for finger-printing purposes contrary to the normal procedure in buy-bust operations. This
omission has been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:
Q: Is it the standard operating procedure of your unit that in conducting
such operation you do not anymore provide a powder (sic) on the object
so as to determine the thumbmark or identity of the persons taking hold
of the object?
A: We were not able to put powder on these denominations because we
are lacking that kind of material in our office since that item can be
purchased only in Manila and only few are producing that, sir.
xxx xxx xxx
Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory,
CIS, as well as the office of NICA?
A: Our office is only adjacent to those offices but we cannot make a
request for that powder because they, themselves, are using that in their
29
own work, sir.
The foregoing explanation aside, we agree that the failure to mark the money bills used for entrapment
purposes can under no mode of rationalization be fatal to the case of the prosecution because the
Dangerous Drugs Act punishes "any person who, unless authorized by law, shall sell, administer, deliver,
give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a
30
broker in any of such transactions." The dusting of said bills with phosphorescent powder is only an
evidentiary technique for identification purposes, which identification can be supplied by other species of
evidence.
Again, appellant contends that there was neither a relative of his nor any barangay official or civilian to
witness the seizure. He decries the lack of pictures taken before, during and after his arrest. Moreover, he
31
was not reported to or booked in the custody of any barangay official or police authorities. These are
absurd disputations. No law or jurisprudence requires that an arrest or seizure, to be valid, be witnessed

by a relative, a barangay official or any other civilian, or be accompanied by the taking of pictures. On the
contrary, the police enforcers having caught appellant in flagrante delicto, they were not only authorized
but were also under the obligation to effect a warrantless arrest and seizure.
Likewise, contrary to appellant's contention, there was an arrest report prepared by the police in
32
connection with his apprehension. Said Booking Sheet and Arrest Report states, inter alia, that "suspect
was arrested for selling two tea bags of suspected marijuana dried leaves and the confiscation of another
two tea bags of suspected marijuana dried leaves." Below these remarks was affixed appellant's
signature. In the same manner, the receipt for the seized property, hereinbefore mentioned, was signed
33
by appellant wherein he acknowledged the confiscation of the marked bills from him.
However, we find and hereby declare the aforementioned exhibits inadmissible in evidence. Appellant's
conformance to these documents are declarations against interest and tacit admissions of the crime
charged. They were obtained in violation of his right as a person under custodial investigation for the
34
commission of an offense, there being nothing in the records to show that he was assisted by counsel.
Although appellant manifested during the custodial investigation that he waived his right to counsel, the
35
waiver was not made in writing and in the presence of counsel, hence whatever incriminatory admission
36
or confession may be extracted from him, either verbally or in writing, is not allowable in evidence.
Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot thereby be extricated from
his predicament since his criminal participation in the illegal sale of marijuana has been sufficiently
proven. The commission of the offense of illegal sale of prohibited drugs requires merely the
37
consummation of the selling transaction which happens the moment the buyer receives the drug from
38
the seller. In the present case, and in light of the preceding discussion, this sale has been ascertained
beyond any peradventure of doubt.
39

Appellant then asseverates that it is improbable that he would sell marijuana to a total stranger. We
take this opportunity to once again reiterate the doctrinal rule that drug-pushing, when done on a small
scale as in this case, belongs to that class of crimes that may be committed at any time and in any place.
40
41
It is not contrary to human experience for a drug pusher to sell to a total stranger, for what matters is
not an existing familiarity between the buyer and seller but their agreement and the acts constituting the
42
sale and delivery of the marijuana leaves. While there may be instances where such sale could be
improbable, taking into consideration the diverse circumstances of person, time and place, as well as the
incredibility of how the accused supposedly acted on that occasion, we can safely say that those
exceptional particulars are not present in this case.
Finally, appellant contends that he was subjected to physical and mental torture by the arresting officers
43
which caused him to escape from Camp Olivas the night he was placed under custody. This he asserts
to support his explanation as to how his signatures on the documents earlier discussed were supposedly
obtained by force and coercion.
The doctrine is now too well embedded in our jurisprudence that for evidence to be believed, it must not
only proceed from the mouth of a credible witness but must be credible in itself such as the common
44
experience and observation of mankind can approve as probable under the circumstances.
The
evidence on record is bereft of any support for appellant's allegation of maltreatment. Two doctors, one
45
46
for the prosecution and the other for the defense, testified on the absence of any tell-tale sign or
indication of bodily injury, abrasions or contusions on the person of appellant. What is evident is that the
cause of his abdominal pain was his peptic ulcer from which he had been suffering even before his arrest.
47
His own brother even corroborated that fact, saying that appellant has had a history of bleeding peptic
48
ulcer.
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he had no reason whatsoever for
not divulging the same to his brother who went to see him at the camp after his arrest and during his

49

detention there.
Significantly, he also did not even report the matter to the authorities nor file
50
appropriate charges against the alleged malefactors despite the opportunity to do so and with the legal
services of counsel being available to him. Such omissions funnel down to the conclusion that appellant's
story is a pure fabrication.
These, and the events earlier discussed, soundly refute his allegations that his arrest was baseless and
51
premeditated for the NARCOM agents were determined to arrest him at all costs. Premeditated or not,
appellant's arrest was only the culmination, the final act needed for his isolation from society and it was
providential that it came about after he was caught in the very act of illicit trade of prohibited drugs.
Accordingly, this opinion could have concluded on a note of affirmance of the judgment of the trial court.
However, Republic Act No. 6425, as amended, was further amended by Republic Act No. 7659 effective
52
December 31, 1993, which supervenience necessarily affects the original disposition of this case and
entails additional questions of law which we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the adjudication of the case at bar, are to
this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:
xxx xxx xxx
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall
be imposed upon any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the
Dangerous Drugs Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the
Proceeds or Instrument of the Crime. The penalties for offenses under
Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of
Article III of this Act shall be applied if the dangerous drugs involved is in
any of the following quantities:
xxx xxx xxx
5. 750 grams or more of indian hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less than the foregoing quantities,
the penalty shall range from prision correccional to reclusion perpetua
depending upon the quantity.

1. Considering that herein appellant is being prosecuted for the sale of four tea bags of marijuana with a
total weight of only 3.8 grams and, in fact, stands to be convicted for the sale of only two of those tea
bags, the initial inquiry would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser penalty provided thereunder,
pursuant to Article 22 of the Revised Penal Code.
Although Republic Act No. 6425 was enacted as a special law, albeit originally amendatory and in
53
substitution of the previous Articles 190 to 194 of the Revised Penal Code, it has long been settled that
by force of Article 10 of said Code the beneficient provisions of Article 22 thereof applies to and shall be
54
given retrospective effect to crimes punished by special laws. The execution in said article would not
apply to those convicted of drug offenses since habitual delinquency refers to convictions for the third
55
time or more of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification.
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither have then been
involved nor invoked in the present case, a corollary question would be whether this court, at the present
stage,
can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be imposed on appellant. That
issue has likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a felony,
would be useless and nugatory if the courts of justice were not under obligation to fulfill
such duty, irrespective of whether or not the accused has applied for it, just as would also
all provisions relating to the prescription of the crime and the penalty.
If the judgment which could be affected and modified by the reduced penalties provided in Republic Act
No. 7659 has already become final and executory or the accused is serving sentence thereunder, then
practice, procedure and pragmatic considerations would warrant and necessitate the matter being
56
brought to the judicial authorities for relief under a writ of habeas corpus.
2. Probably through oversight, an error on the matter of imposable penalties appears to have been
committed in the drafting of the aforesaid law; thereby calling for and necessitating judicial reconciliation
and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now further amended, imposes
the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon
any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or
transport any prohibited drug. That penalty, according to the amendment to Section 20 of the law, shall be
applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity
involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon
the quantity.
In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by
reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750
grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The
same error has been committed with respect to the other prohibited and regulated drugs provided in said
57
Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, we hereby
hold that the penalty to be imposed where the quantity of the drugs involved is less than the quantities
stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion
perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be
construed in a manner favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8 grams, hence covered by the
imposable range of penalties under the second paragraph of Section 20, as now modified, the law

provides that the penalty shall be taken from said range "depending upon the quantity" of the drug
involved in the case. The penalty in said second paragraph constitutes a complex one composed of three
distinct penalties, that is, prision correccional, prision mayor, and reclusion temporal. In such a situation,
the Code provides that each one shall form a period, with the lightest of them being the minimum, the
58
next as the medium, and the most severe as the maximum period.
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and aggravating circumstances
determine
which
period
of
such
complex
penalty
shall be imposed on the accused. The peculiarity of the second paragraph of Section 20, however, is its
specific mandate, above quoted, that the penalty shall instead depend upon the quantity of the drug
59
subject of the criminal transaction. Accordingly, by way of exception to Article 77 of the Code and to
subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid component penalties
shall be considered as a principal imposable penalty depending on the quantity of the drug involved.
Thereby, the modifying circumstances will not altogether be disregarded. Since each component penalty
of the total complex penalty will have to be imposed separately as determined by the quantity of the drug
involved, then the modifying circumstances can be used to fix the proper period of that component
penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the context of our aforesaid disposition
thereon that, unless there are compelling reasons for a deviation, the quantities of the drugs enumerated
in its second paragraph be divided into three, with the resulting quotient, and double or treble the same,
to be respectively the bases for allocating the penalty proportionately among the three aforesaid periods
according to the severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty to be
imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the
60
penalty is reclusion perpetua to death.
Now, considering the minimal quantity of the marijuana subject of the case at bar, the penalty of prision
correccional is consequently indicated but, again, another preliminary and cognate issue has first to be
resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of and illustrated in the table provided by Article 76 of the
Code. The question is whether or not in determining the penalty to be imposed, which is here to be taken
from the penalty of prision correccional, the presence or absence of mitigating, aggravating or other
circumstances modifying criminal liability should be taken into account.
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses
under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code
cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals
that the reason therefor was because the special laws involved provided their own specific penalties for
the offenses punished thereunder, and which penalties were not taken from or with reference to those in
the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide
for the minimum, medium or maximum periods, it would consequently be impossible to consider the
aforestated modifying circumstances whose main function is to determine the period of the penalty in
accordance with the rules in Article 64 of the Code.
This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws, since
the penalties in the latter were not components of or contemplated in the scale of penalties provided by
Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in
Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a
prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished
under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical
nomenclature and, necessarily, with its duration, correlation and legal effects under the system of
penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its
technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise.
More on this later.
For the nonce, we hold that in the instant case the imposable penalty under Republic Act No. 6425, as
amended by Republic Act No. 7659, is prision correccional, to be taken from the medium period thereof
pursuant to Article 64 of the Revised Penal Code, there being no attendant mitigating or aggravating
circumstance.
5. At this juncture, a clarificatory discussion of the developmental changes in the penalties imposed for
offenses under special laws would be necessary.
Originally, those special laws, just as was the conventional practice in the United States but differently
from the penalties provided in our Revised Penal Code and its Spanish origins, provided for one specific
penalty or a range of penalties with definitive durations, such as imprisonment for one year or for one to
five years but without division into periods or any technical statutory cognomen. This is the special law
61
contemplated in and referred to at the time laws like the Indeterminate Sentence Law
were passed
during the American regime.
Subsequently, a different pattern emerged whereby a special law would direct that an offense thereunder
shall be punished under the Revised Penal Code and in the same manner provided therein. Inceptively,
62
for instance, Commonwealth Act No. 303
penalizing non-payment of salaries and wages with the
periodicity prescribed therein, provided:
Sec. 4. Failure of the employer to pay his employee or laborer as required by section one
of this Act, shall prima facie be considered a fraud committed by such employer against
his employee or laborer by means of false pretenses similar to those mentioned in article
three hundred and fifteen, paragraph four, sub-paragraph two (a) of the Revised Penal
63
Code and shall be punished in the same manner as therein provided.
Thereafter, special laws were enacted where the offenses defined therein were specifically punished by
the penalties as technically named and understood in the Revised Penal Code. These are exemplified by
Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto mayor to
64
death; Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties run from arresto mayor
to
prision
mayor;
and
Presidential
Decree
No. 1866 (illegal possession and other prohibited acts involving firearms), the penalties wherefor may
involve prision mayor, reclusion temporal, reclusion perpetua or death.
Another
variant
worth
mentioning
is
Republic
Act
No.
6539
(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not less than 14 years and 8 months
and not more than 17 years and 4 months, when committed without violence or intimidation of persons or
force upon things; not less than 17 years and 4 months and not more than 30 years, when committed with
violence against or intimidation of any person, or force upon things; and life imprisonment to death, when
the owner, driver or occupant of the carnapped vehicle is killed.
With respect to the first example, where the penalties under the special law are different from and are
without reference or relation to those under the Revised Penal Code, there can be no suppletory effect of
the rules for the application of penalties under said Code or by other relevant statutory provisions based
on or applicable only to said rules for felonies under the Code. In this type of special law, the legislative
intendment is clear.

The same exclusionary rule would apply to the last given example, Republic Act No. 6539. While it is true
that
the
penalty
of
14
years
and
8 months to 17 years and 4 months is virtually equivalent to the duration of the medium period of
reclusion temporal, such technical term under the Revised Penal Code is not given to that penalty for
carnapping. Besides, the other penalties for carnapping attended by the qualifying circumstances stated
in the law do not correspond to those in the Code. The rules on penalties in the Code, therefore, cannot
suppletorily apply to Republic Act No. 6539 and special laws of the same formulation.
On the other hand, the rules for the application of penalties and the correlative effects thereof under the
Revised Penal Code, as well as other statutory enactments founded upon and applicable to such
provisions of the Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and 1866. While these are
special laws, the fact that the penalties for offenses thereunder are those provided for in the Revised
Penal code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under
the Code the corresponding application to said special laws, in the absence of any express or implicit
proscription in these special laws. To hold otherwise would be to sanction an indefensible judicial
truncation of an integrated system of penalties under the Code and its allied legislation, which could never
have been the intendment of Congress.
65

In People vs. Macatanda, a prosecution under a special law (Presidential Decree No. 533, otherwise
known as the Anti-Cattle Rustling Law of 1974), it was contended by the prosecution that Article 64,
paragraph 5, of the Revised Penal Code should not apply to said special law. We said therein that
We do not agree with the Solicitor General that P.D. 533 is a special law entirely distinct
from and unrelated to the Revised Penal Code. From the nature of the penalty imposed
which is in terms of the classification and duration of penalties as prescribed in the
Revised Penal Code, which is not for penalties as are ordinarily imposed in special laws,
the intent seems clear that P.D. 533 shall be deemed as an amendment of the Revised
Penal Code, with respect to the offense of theft of large cattle (Art. 310) or otherwise to
be subject to applicable provisions thereof such as Article 104 of the Revised Penal Code
. . . . Article 64 of the same Code should, likewise, be applicable, . . . . (Emphasis
supplied.)
More particularly with regard to the suppletory effect of the rules on penalties in the Revised Penal Code
to Republic Act No. 6425, in this case involving Article 63(2) of the Code, we have this more recent
pronouncement:
. . . Pointing out that as provided in Article 10 the provisions of the Revised Penal Code
shall be "supplementary" to special laws, this Court held that where the special law
expressly grants to the court discretion in applying the penalty prescribed for the offense,
there is no room for the application of the provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no explicit
grant of discretion to the Court in the application of the penalty prescribed by the law. In
such case, the court must be guided by the rules prescribed by the Revised Penal Code
concerning the application of penalties which distill the "deep legal thought and centuries
66
of experience in the administration of criminal laws." (Emphasis ours.)
Under the aforestated considerations, in the case of the Dangerous Drugs Act as now amended by
Republic Act No. 7659 by the incorporation and prescription therein of the technical penalties defined in
and constituting integral parts of the three scales of penalties in the Code, 67 with much more reason
should the provisions of said Code on the appreciation and effects of all attendant modifying
circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and
the
rules
for
graduating

such penalties by degrees should have supplementary effect on Republic Act No. 6425, except if they
would result in absurdities as will now be explained.
While not squarely in issue in this case, but because this aspect is involved in the discussion on the role
of modifying circumstances, we have perforce to lay down the caveat that mitigating circumstances
should be considered and applied only if they affect the periods and the degrees of the penalties within
rational limits.
Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the
penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in
Article 71, are the stage of execution of the crime and the nature of the participation of the accused.
However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances
and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of
privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or
two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the
determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act
No. 6425, to avoid anomalous results which could not have been contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties
which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex
penalty
in
this
case
consists
of
three
discrete
penalties
in
their
full
extent,
that
is,
prision correccional, prision mayor and reclusion temporal, then one degree lower would be arresto
menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and public
censure remain in the scale.
The Court rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such
graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for
this reason that the three component penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the lowest penalty should in any event be
prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut
res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have
efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse
should now be the concern of and is accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before
us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which
would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion
perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of
68
imprisonment.
The more important aspect, however, is how the indeterminate sentence shall be
ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the
Revised Penal Code, states that "if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the minimum term prescribed by the same." We hold
that this quoted portion of the section indubitably refers to an offense under a special law wherein the
penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in
the preceding illustrations, such that it may be said that the "offense is punished" under that law.

There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under
special laws was necessary because of the nature of the former type of penalties under said laws which
were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could
be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense,"
as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore
provided, this rule applied, and would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified
69
under the rule of contemporanea expositio.
We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted
the penalties under the Revised Penal Code in their technical terms, hence with their technical
signification and effects. In fact, for purposes of determining the maximum of said sentence, we
have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and
Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a
special law, is now in effect punished by and under the Revised Penal Code. Correlatively, to determine
the minimum, we must apply the first part of the aforesaid Section 1 which directs that "in imposing a
prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the rules of said Code, and the
minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the
offense." (Emphasis ours.)
A divergent pedantic application would not only be out of context but also an admission of the hornbook
maxim that qui haeret in litera haeret in cortice. Fortunately, this Court has never gone only skin-deep in
its construction of Act. No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to the
phrase in Section 2 thereof excepting from its coverage "persons convicted of offenses punished with
death penalty or life imprisonment," we have held that what is considered is the penalty actually imposed
70
and not the penalty imposable under the law, and that reclusion perpetua is likewise embraced therein
although what the law states is "life imprisonment".
What irresistibly emerges from the preceding disquisition, therefore, is that under the concurrence of the
principles of literal interpretation, which have been rationalized by comparative decisions of this Court; of
historical interpretation, as explicated by the antecedents of the law and related contemporaneous
legislation; and of structural interpretation, considering the interrelation of the penalties in the Code as
supplemented by Act No. 4103 in an integrated scheme of penalties, it follows that the minimum of the
indeterminate sentence in this case shall be the penalty next lower to that prescribed for the offense.
Thereby we shall have interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as
71
to harmonize laws with laws, which is the best mode of interpretation.
The indeterminate Sentence Law is a legal and social measure of compassion, and should be liberally
72
interpreted in favor of the accused.
The "minimum" sentence is merely a period at which, and not
before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance of
73
his sentence outside of his confinement. It does not constitute the totality of the penalty since thereafter
he still has to continue serving the rest of his sentence under set conditions. That minimum is only the
period when the convict's eligibility for parole may be considered. In fact, his release on parole may
readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds,
even if he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should be begrudged the benefit of a
minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which
is the maximum range we have fixed through the application of Articles 61 and 71 of the Revised Penal
Code. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor,
instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve
only one day, is hardly worth the creation of an overrated tempest in the judicial teapot.

ACCORDINGLY, under all the foregoing premises, the judgment of conviction rendered by the court a
quo against accused-appellant Martin Simon y Sunga is AFFIRMED, but with the MODIFICATION that he
should be, as he hereby is, sentenced to serve an indeterminate penalty of six (6) months of arresto
mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapunan and Mendoza, JJ.,
concur.
Bellosillo, J., is on leave.

Separate Opinions

DAVIDE, JR., J., concurring and dissenting:

I am still unable to agree with the view that (a) in appropriate cases where the penalty to
be imposed would be prision correccional pursuant to the second paragraph of Section
20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be
meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended),
should be that whose minimum is within the range of the penalty next lower, i.e., arresto
mayor; and (b) the presence of two or more mitigating circumstances not offset by any
mitigating circumstances or of a privileged mitigating circumstance shall not reduce the
penalty by one or two degrees if the penalty to be imposed, taking into account the
quantity of the dangerous drugs involved, would be prision correccional.
I
The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence
also their technical signification and effects, then what should govern is the first part of
Section 1 of the Indeterminate Sentence Law which directs that:
in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to
an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed
under the rules of the said Code, and the minimum which shall be within
the range of the penalty next lower to that prescribed by the Code for the
offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal
Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as
amended, the latter offenses would now be considered as punished under the Revised
Penal Code for purposes of the Indeterminate Sentence Law.

Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No.
4225 and R.A. No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall not be
less than the minimum prescribed by the same (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into account in
the application of the Indeterminate Sentence Law: (1) offenses punished by the
Revised Penal Code, and (2) offenses punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and penalized in
Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify
further, a crime is deemed punished under the Revised Penal Code if it is defined by it,
and none other, as a crime and is punished by a penalty which is included in the
classification of Penalties in Chapter II, Title III of Book I thereof.
On the other hand, an offense is considered punished under any other law (or special
law) if it is not defined and penalized by the Revised Penal Code but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if both its
definition and the penalty therefor are found in the said Code, and it is deemed
punished by a special law if its definition and the penalty therefor are found in the
special law. That the latter imports or borrows from the Revised Penal Code its
nomenclature of penalties does not make an offense in the special law punished by or
punishable under the Revised Penal Code. The reason is quite simple. It is still the
special law that defines the offense and imposes a penalty therefor, although it adopts
the Code's nomenclature of penalties. In short, the mere use by a special law of a
penalty found in the Revised Penal Code can by no means make an offense thereunder
an offense "punished or punishable" by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties
prescribed by the Revised Penal Code in drug cases, offenses related to drugs should
now be considered as punished under the Revised Penal Code. If that were so, then we
are also bound, ineluctably, to declare that such offenses are mala in se and to apply
the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the
nature of participation (Article 16), accessory penalties (Articles 40-45), application of
penalties to principals, accomplices, and accessories (Article 46 et seq.), complex
crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot
do otherwise without being drawn to an inconsistent posture which is extremely hard to
justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties
in the Revised Penal Code does not make an offense under the Dangerous Drugs Act
an offense punished by the Revised Penal Code. Consequently, where the proper

penalty to be imposed under Section 20 of the Dangerous Drugs Act is prision

correccional, then, applying the Indeterminate Sentence Law, the indeterminate
sentence to be meted on the accused should be that whose minimum should not be
less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e.,
not lower than six (6) months and one (1) day of prision correccional.
II
The majority opinion holds the view that while the penalty provided for in Section 20 of
the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz.,
prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article
77 of the Revised Penal Code, each should form a period, with the lightest of them
being the minimum, the next as the medium, and the most severe as the maximum, yet,
considering that under the said second paragraph of Section 20 the penalty depends on
the quantity of the drug subject of the criminal transaction, then by way of exception to
Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as
amended, each of the aforesaid component penalties shall be considered as a principal
penalty depending on the quantity of the drug involved. Thereafter, applying the
modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper
period of the component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the
proper principal penalty should be prision correccional, but there is one mitigating and
no aggravating circumstance, then the penalty to be imposed should be prision
correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It
declares:
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or
even reduce the penalty by degrees, in no case should such graduation of
penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be considered
as an independent principal penalty, and that the lowest penalty should in
any event be prision correccional in order to depreciate the seriousness of
drug offenses.
Simply
put,
this
rule
would
allow
the
reduction
from
reclusion
temporal if it is the penalty to be imposed on the basis of the quantity of the drugs
involved by two degrees, or to prision correccional, if there are two or more mitigating
circumstances and no aggravating circumstance is present (paragraph 5, Article 64,
Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority
(Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the
Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor,
regardless of the fact that a reduction by two degrees is proper, it should only be
reduced by one degree because the rule does not allow a reduction beyond prision

correccional. Finally, if the proper penalty to be imposed is prision correccional, no

reduction at all would be allowed.
I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within
the same second paragraph involving the same range of penalty, we both allow and
disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal
Code. The reason for the disallowance, viz., in order not to depreciate the seriousness
of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as
amended
by
R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing
quantity as basis for the determination of the proper penalty and limiting fine only to
cases punishable by reclusion perpetua to death. It is unfair because an accused who is
found
guilty
of
possessing
MORE
dangerous
drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed
would be reclusion temporal may only be sentenced to six (6) months and one (1)
day of prision correccional minimum because of privileged mitigating circumstances.
Yet, an accused who is found guilty of possession of only one (1) gram of marijuana
in which case the penalty to be imposed is prision correccional would not be entitled
to a reduction thereof even if he has the same number of privileged mitigating
circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority of the
accused, then he is entitled to the reduction of the penalty as a matter of right pursuant
to Article 68 of the Revised Penal Code, which reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of
age. When the offender is a minor under eighteen years and his case is
one coming under the provisions of the paragraph next to the last of
Article 80 of this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age,
who is not exempted from liability by reason of the court
having declared that he acted with discernment, a
discretionary penalty shall be imposed, but always lower by
two degrees at least than that prescribed by law for the
crime which he committed.
2. Upon a person over fifteen and under eighteen years of
age the penalty next lover than that prescribed by law shall
be imposed, but always in the proper period.
I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs
Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the
Revised Penal Code in one aspect and not to apply it in another.
Feliciano and Quiason, JJ., concur.

# Separate Opinions

DAVIDE, JR., J., concurring and dissenting:

I am still unable to agree with the view that (a) in appropriate cases where the penalty to
be imposed would be prision correccional pursuant to the second paragraph of Section
20 of R.A. No. 6425, as amended by Section 17 of R.A. No. 7659, the sentence to be
meted out, applying the Indeterminate Sentence Law (Act No. 4103, as amended),
should be that whose minimum is within the range of the penalty next lower, i.e., arresto
mayor; and (b) the presence of two or more mitigating circumstances not offset by any
mitigating circumstances or of a privileged mitigating circumstance shall not reduce the
penalty by one or two degrees if the penalty to be imposed, taking into account the
quantity of the dangerous drugs involved, would be prision correccional.
I
The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence
also their technical signification and effects, then what should govern is the first part of
Section 1 of the Indeterminate Sentence Law which directs that:
in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to
an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed
under the rules of the said Code, and the minimum which shall be within
the range of the penalty next lower to that prescribed by the Code for the
offense.
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal
Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as
amended, the latter offenses would now be considered as punished under the Revised
Penal Code for purposes of the Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act. No. 4103, as amended by Act. No.
4225 and R.A. No. 4203) also provides that:
if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall not be
less than the minimum prescribed by the same (Emphasis supplied).

There are, therefore, two categories of offenses which should be taken into account in
the application of the Indeterminate Sentence Law: (1) offenses punished by the
Revised Penal Code, and (2) offenses punished by other laws (or special laws).
The offenses punished by the Revised Penal Code are those defined and penalized in
Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To simplify
further, a crime is deemed punished under the Revised Penal Code if it is defined by it,
and none other, as a crime and is punished by a penalty which is included in the
classification of Penalties in Chapter II, Title III of Book I thereof.
On the other hand, an offense is considered punished under any other law (or special
law) if it is not defined and penalized by the Revised Penal Code but by such other law.
It is thus clear that an offense is punished by the Revised Penal Code if both its
definition and the penalty therefor are found in the said Code, and it is deemed
punished by a special law if its definition and the penalty therefor are found in the
special law. That the latter imports or borrows from the Revised Penal Code its
nomenclature of penalties does not make an offense in the special law punished by or
punishable under the Revised Penal Code. The reason is quite simple. It is still the
special law that defines the offense and imposes a penalty therefor, although it adopts
the Code's nomenclature of penalties. In short, the mere use by a special law of a
penalty found in the Revised Penal Code can by no means make an offense thereunder
an offense "punished or punishable" by the Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the penalties
prescribed by the Revised Penal Code in drug cases, offenses related to drugs should
now be considered as punished under the Revised Penal Code. If that were so, then we
are also bound, ineluctably, to declare that such offenses are mala in se and to apply
the Articles of the Revised Penal Code regarding the stages of a felony (Article 6), the
nature of participation (Article 16), accessory penalties (Articles 40-45), application of
penalties to principals, accomplices, and accessories (Article 46 et seq.), complex
crimes (Article 48), and graduation of penalties (Article 61), among others. We cannot
do otherwise without being drawn to an inconsistent posture which is extremely hard to
justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of the penalties
in the Revised Penal Code does not make an offense under the Dangerous Drugs Act
an offense punished by the Revised Penal Code. Consequently, where the proper
penalty to be imposed under Section 20 of the Dangerous Drugs Act is prision
correccional, then, applying the Indeterminate Sentence Law, the indeterminate
sentence to be meted on the accused should be that whose minimum should not be
less than the minimum prescribed by the special law (the Dangerous Drugs Act), i.e.,
not lower than six (6) months and one (1) day of prision correccional.
II

The majority opinion holds the view that while the penalty provided for in Section 20 of
the Dangerous Drugs Act is a complex one composed of three distinct penalties, viz.,
prision correccional, prision mayor, and reclusion temporal, and that pursuant to Article
77 of the Revised Penal Code, each should form a period, with the lightest of them
being the minimum, the next as the medium, and the most severe as the maximum, yet,
considering that under the said second paragraph of Section 20 the penalty depends on
the quantity of the drug subject of the criminal transaction, then by way of exception to
Article 77 of the Revised Penal Code and to subserve the purpose of Section 20, as
amended, each of the aforesaid component penalties shall be considered as a principal
penalty depending on the quantity of the drug involved. Thereafter, applying the
modifying circumstances pursuant to Article 64 of the Revised Penal Code, the proper
period of the component penalty shall then be fixed.
To illustrate, if the quantity of the drugs involved (e.g., marijuana below 250 grams) the
proper principal penalty should be prision correccional, but there is one mitigating and
no aggravating circumstance, then the penalty to be imposed should be prision
correccional in its minimum period. Yet, the majority opinion puts a limit to such a rule. It
declares:
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or
even reduce the penalty by degrees, in no case should such graduation of
penalties reduce the imposable penalty beyond or lower than
prision correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be considered
as an independent principal penalty, and that the lowest penalty should in
any event be prision correccional in order to depreciate the seriousness of
drug offenses.
Simply
put,
this
rule
would
allow
the
reduction
from
reclusion
temporal if it is the penalty to be imposed on the basis of the quantity of the drugs
involved by two degrees, or to prision correccional, if there are two or more mitigating
circumstances and no aggravating circumstance is present (paragraph 5, Article 64,
Revised Penal Code) or if there is a privileged mitigating circumstances of, say, minority
(Article 68, Revised Penal Code), or under circumstances covered by Article 69 of the
Revised Penal Code. Yet, if the proper penalty to be imposed is prision mayor,
regardless of the fact that a reduction by two degrees is proper, it should only be
reduced by one degree because the rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed is prision correccional, no
reduction at all would be allowed.
I find the justification for the rule to be arbitrary and unfair. It is arbitrary because within
the same second paragraph involving the same range of penalty, we both allow and
disallow the application of Article 64(5), Article 68, and Article 69 of the Revised Penal
Code. The reason for the disallowance, viz., in order not to depreciate the seriousness
of drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as

amended
by
R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by providing
quantity as basis for the determination of the proper penalty and limiting fine only to
cases punishable by reclusion perpetua to death. It is unfair because an accused who is
found
guilty
of
possessing
MORE
dangerous
drugs say 500 to 749 grams of marijuana, in which case the penalty to be imposed
would be reclusion temporal may only be sentenced to six (6) months and one (1)
day of prision correccional minimum because of privileged mitigating circumstances.
Yet, an accused who is found guilty of possession of only one (1) gram of marijuana
in which case the penalty to be imposed is prision correccional would not be entitled
to a reduction thereof even if he has the same number of privileged mitigating
circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority of the
accused, then he is entitled to the reduction of the penalty as a matter of right pursuant
to Article 68 of the Revised Penal Code, which reads:
Art. 68. Penalty to be imposed upon a person under eighteen years of
age. When the offender is a minor under eighteen years and his case is
one coming under the provisions of the paragraph next to the last of
Article 80 of this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age,
who is not exempted from liability by reason of the court
having declared that he acted with discernment, a
discretionary penalty shall be imposed, but always lower by
two degrees at least than that prescribed by law for the
crime which he committed.
2. Upon a person over fifteen and under eighteen years of
age the penalty next lover than that prescribed by law shall
be imposed, but always in the proper period.
I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs
Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the
Revised Penal Code in one aspect and not to apply it in another.
Feliciano and Quiason, JJ., concur.